Federal Court Enjoins Manufacturing Plant From Retaliating Against OSHA Complainants

An employee working on a production line of a plant that makes foam cushions used in car seats and head rests raised concerns about exposure to the chemical toluene diisocyanate (“TDI”).  In May 2014, the employee was one of ten plant employees to provide management with a signed letter regarding TDI leaks at the plant and health concerns.  The plant promptly hired an independent group to test the air in the plant for TDI and OSHA conducted its own testing as well.  All of the tests showed that TDI levels were within permissible exposure levels.  In November 2014, OSHA issued multiple citations to the plant that eventually led to an informal settlement agreement and reduced penalty.

The complaining employee then appeared in a media article about the plant and described her concerns for worker safety.  The plant moved her from the production line to the warehouse to ensure she did not come into contact with TDI and paid her the same hourly wage.  In late 2014, the employee and another worker participated in a video about the plant, TDI, and health and the plant suspended both for three days without pay for participating in the video.  In March 2015, the employee delivered a letter to the plant’s only automotive customer demanding that the customer “make the necessary investments to ensure good, safe, fair working conditions throughout its supply chain.”  The plant suspended the employee seven days without pay after attempting to deliver the letter to its customer and then terminated her the following month.

The plant then filed a lawsuit in Alabama state court for intentional interference with business relations and for defamation.  The state court issued a temporary restraining order after finding that the plant established a reasonable chance of success of prevailing on the merits of its claims, and that the evidence showed that the employee published non-privileged false statements that the plant air was unsafe despite knowing such statements to be false.  That temporary restraining order expired on March 30, 2015.

On April 15, 2015, the U.S. Secretary of Labor filed a motion for a temporary restraining order and to show cause why a preliminary injunction should not issue.  The Secretary alleged that the plant was retaliating against employees for exercising their rights to provide information about workplace safety violations to the federal government.

The U.S. District Court for the Southern District of Alabama agreed with the Secretary and issued a preliminary injunction.  The court rejected the plant’s argument that the Secretary lacked statutory authority to file the action prior to reaching an administrative determination on the merits because the Secretary is authorized to bring suit in U.S. district courts for violations of the OSHA’s whistleblower protection statute at any time.  The court concluded that the employee engaged in protected activity when she spoke about the conditions at the plant, but reserved judgment on whether the employee’s attempt to deliver a letter to the plant’s customer constituted protected activity given that an employee cannot act unilaterally to remedy what that person perceives to be a safety risk unless faced with death or serious injury and no reasonable alternatives are available.  The court stated there was sufficient evidence to find that the plant took adverse action against the employee for her protected activity, and that, but for this protected activity, the plant would not have disciplined the employee.

The court’s preliminary injunction stated as follows:

1. Defendants are enjoined from terminating, suspending, harassing, suing, threatening, intimidating, or taking any other discriminatory or retaliatory action against any current or former employee based on Defendants’ belief that such employee exercised any rights he or she may have under the Occupational Safety and Health Act;

2. Defendants are enjoined from telling any current or former employee not to speak to or cooperate with representatives of the Secretary of Labor;

3. Defendants are enjoined from obstructing any investigation by the Secretary of Labor or its designee;

4. Defendants are enjoined from suing current or former employees because of those individuals’ complaints about health and safety or because they engaged in protected activity under the Occupational Safety and Health Act.