Employers set to fight OSHA over retaliation claims

Jim Stanley

Employers have more to worry about given the Occupational Safety and Health Administration's ramp-up of litigation to protect whistleblowing employees as it targets common workplace safety policies as well as supervisors.

Two recent cases — one against Pittsburgh-based United States Steel Corp. and the other against Southfield, Michigan-based Lear Corp. — have raised several concerns.

In the U.S. Steel case, the Labor Department brought a suit in Wilmington, Delaware, federal court in mid-February seeking to reverse disciplinary actions against two employees for failing to immediately report workplace injuries in accordance with company policy, according to court records.

“I think there's no question the employer community at large should be alarmed and concerned by the position OSHA's taking,” said Eric Hobbs, a partner at Michael Best & Friedrich L.L.P. in Milwaukee. “That's a case where the employer has no choice but to marshal all its resources and to fight the battle.”

U.S. Steel declined comment, but those familiar with the company say OSHA is in for a fight.

“They're not going to back down on their requirement to immediately report injuries,” said Jim Stanley, president of safety consulting firm FDRsafety L.L.C. in Franklin, Tennessee, and a former deputy assistant secretary of labor and vice president and corporate director of safety at AK Steel. “OSHA has no authority to do what they're doing. They can't just declare that it's illegal to require an employee to immediately report accidents.”

Employer policies requiring immediate injury and illness reporting are common, experts say.

“That's often been an uncontroversial requirement, but OSHA is now taking the position that that kind of policy can be retaliatory,” said Ilana Morady, a San Francisco-based associate at Seyfarth Shaw L.L.P.

At the heart of the U.S. Steel case are five-day suspensions imposed on two employees who did not immediately report their injuries because they were unaware they sustained injuries at the time — disciplinary actions that OSHA said violated the anti-discrimination provision of the Occupational Safety and Health Act.

Even employer advocates say the disciplinary action, if true, is unusual.

“The policy from the company was different from what we typically see,” said William Principe, an Atlanta-based partner at Constangy, Brooks, Smith & Prophete L.L.P. “I don't know of anybody that I've dealt with that would have had a multiday, unpaid suspension for the first time that somebody didn't report an injury by the end of the shift.”

The suit seeks to permanently bar U.S. Steel from enforcing a policy that requires employees to report any injury earlier than seven calendar days after the employee becomes aware of his or her injury or illness — a helpful piece of information to guide employers going forward, Ms. Morady said.

“I don't think we'd want to say, 'Scratch your policy or don't enforce your policy,' but I think it would make sense for employers to evaluate those policies and make sure they have something in place that allows employees time to realize that they've been injured because it's true that sometimes you can be injured and not realize it,” she said.

Last month, the Labor Department sued Lear and several managers in Montgomery, Alabama, federal court on grounds they violated the anti-discrimination provisions of the OSH Act for suspending and terminating employees who reported workplace safety hazards, according to court records.

A March 2015 filing by Lear sought a temporary order to restrain Kimberly King, one of the fired employees, on grounds of intentional interference with business relations and defamation after she spoke to media outlets about her workplace safety concerns and tried to deliver a letter to Lear customer Hyundai Motor Co., asking the automaker to require Lear to deal with these issues.

Federal authorities responded by securing a restraining order forbidding the automotive seating and electrical provider from engaging in or threatening retaliation against employees during a whistleblower investigation, according to court records.

“It's always been kind of common to fire people, but to then sue them because they tried to protect their rights is very, very chilling,” said Carolyn Wheeler, senior counsel at Katz, Marshall & Banks L.L.P. in Washington. “I just don't see how people are going to feel confident that it's a good idea to go to federal agencies to report safety concerns if they can then be sued for even opening their mouths.”

The department took a “very aggressive approach” in suing three individual Lear managers for alleged retaliation, said Punam Kaji, a Houston-based attorney at Haynes & Boone L.L.P.

“Managers are no longer shielded by their corporation or employer, and they need to consider whether their actions are going to put them in a position of personal liability,” she said.

The Lear managers were named partly because of the decision to transfer the employees from the company's plant to the warehouse, where they were no longer fully able to take advantage of overtime opportunities.

“Increased training might just be a first step so that everyone really understands what is considered retaliation because sometimes a change in employment in ways that may be perceived to be retaliation or without the intent of retaliation can be retaliation,” Ms. Kaji said.