Whistleblower Protection for Safety Complaints in Ohio

posted by Neil Klingshirn  |  Nov 2, 2009 08:34 AM [EST]  |  applies to Ohio

Ohio Employees can make legally protected complaints about unsafe work conditions to their employers and to the Occupational Health and Safety Administration (OSHA). OSHA specifically prohibits employer retaliation against employees who file OSHA complaints. In addition, Ohio public policy “demands that employees be provided with a safe work environment and that unsafe working conditions be corrected.” Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134, 153 (1997). Thus, employees fired for making OSHA and employer safety complaints can pursue wrongful discharge claims under Ohio's public policy exception to employment at will.

Complaints to OSHA

Section 11(c) of the Occupational Health and Safety Act prohibits employer retaliation against employees who file OSHA complaints. However, only OSHA can bring a charge of retaliation under Section 11(c).  Often, OSHA will not pursue retaliation claims on behalf of employees.

In Ohio, employees can file suit on their own against their employer if discharged for filing an OSHA complaint.  The Ohio Supreme Court reached this conclusion with the support of “a host of statutes and constitutional provisions favoring safety in the workplace.”  Kulch. These include:

• Sections 34 and 35, Article II of the Ohio Constitution;
• R.C. 4101.11 (duty of employer to protect employees and frequenters);
• R.C. 4101.12 (duty of employer to furnish safe place of employment);
• R.C. 4121.13 (safety and investigative duties of the Administrator of Workers' Compensation);
• R.C. 4121.17 (duty of the Bureau of Workers' Compensation to investigate petitions concerning unsafe employment or places of employment);
• R.C. 4121.47 (no employer shall violate a specific safety rule adopted by the Administrator of Workers' Compensation or an Act of the General Assembly to protect the lives, health and safety of employees);
• R.C. 4121.48 (occupational safety loan program to reduce employment hazards and promote health, and safety of employees); and
• 29 U.S.C. Section 660(c), which prohibits employer retaliation against employees who file OSHA complaints.
  

Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134 (1997).

Safety Complaints to the Employer

The Ohio Supreme Court also held that when an employer terminates an employee for complaining to it about “working conditions he believed jeopardized employee health and safety,” that employer violates Ohio law Pytlinski v. Brocar Prods., 94 Ohio St. 3d 77, 78 (Ohio 2002)(emphasis added). See also

• Bidwell v. Children's Medical Ctr., 1997 Ohio App. LEXIS 5272 (Ohio Ct. App., Montgomery County Nov. 26, 1997)(discharge in retaliation for refusal to work overtime because of safety concern violated Ohio law);
• Blair v. Honda of Am. Mfg., 2002 Ohio 1065 (Ohio Ct. App., Union County Mar. 14, 2002) (the clear public policy of workplace safety prohibits an employer from terminating an employee who chooses not to work in an area that is unsafe).

Limits on Public Policy Claims

Employers have attacked the legal theory underlying Ohio's protection of employees who make safety complaints, with considerable success. Although Kulch, Pytlinski and similar cases remain valid, they are vulnerable to revision by the Ohio Supreme Court.  Hence, this area of the law is subject to change.

posted by Neil Klingshirn  |  Nov 2, 2009 08:34 AM [EST]  |  applies to Ohio