Date: Jan 01, 1999
The Occupational Safety and Health Act provides that employers may not discriminate against employees for exercising their rights under the OSH Act. Under this provision, the Secretary of Labor is authorized to seek relief for the employees if she determines, after an appropriate investigation, that the prohibition has been violated. The provision has been in existence since the adoption of the statute in 1970, but has rarely resulted in enforcement action by the Secretary. This has been a point of contention for organized labor, whose representatives point to the small number of cases brought by OSHA as evidence that an amendment to the
statute is necessary to give employees a personal right of action and to require OSHA to vigorously investigate and enforce the provision. The Cambridgeport case is an example where OSHA sought and won significant damages for two
employees who were fired as a result of complaints they made about working conditions in the plant.
Peter Richardson was a welder at Cambridgeport's plant in Salisbury,
Massachusetts, while Shawn Roche was a general shipper-trainee. Richardson was fired ostensibly for poor work but the District Court found, and Cambridgeport did not contest the finding, that Richardson was fired for complaining about health and safety conditions at the plant. Roche, who was a friend of Richardson's, was
fired because he was a special friend of Richardson, and that his discharge was simply "housecleaning." At trial, Roche admitted that his work performance was not superior, but he contended that he was fired not for poor performance, but because of his connection to Richardson. The trial court discredited the testimony of
Cambridgeport's witnesses, saying that they had exaggerated Roche's problems at
work. In addition, the court characterized Cambridgeport's conduct as "brash," that it was a "tough outfit," and that it "supervised" its witnesses rather than standing by, passively observing them.
The question appealed to the 1st Circuit Court of Appeals concerned the damage award that the trial court imposed on the defendant. Cambridgeport was ordered to pay back wages and additional damages of an equal amount to cover "additional damage plus prejudgment interest." The statute provides that, in an action to vindicate the employee's rights under section 11(c) of the statute, the district court could order "all appropriate relief including rehiring or
reinstatement to his former position with back pay." Cambridgeport contended that the doubling of the back pay award exceeded the district court's authority under the statute and should be reversed.
The Appellate Court rejected Cambridgeport's argument. Congress did not explicitly limit the courts' authority to award damages or the basis for them. The language of the statute was not exclusive; in the absence of clear evidence to the contrary, courts nominally have the power to award any appropriate relief including monetary damages. While Cambridgeport argued that the example of
back pay and reinstatement meant that Congress intended "to limit relief to those
remedies expressly mentioned. . . ," the Court concluded that the example was
intended to expressly identify certain remedies, but not to limit the courts'
discretion in any way. Monetary damages were permissible, and, further, such damages were not limited to compensatory damages, but conceivably authorized punitive (sometimes called "exemplary" damages) as well. When the statute was enacted, the House and Senate bills had distinctly different provisions for remedies to discrimination against employees exercising OSH Act rights. The House demanded criminal penalties attach to employers conduct, while the Senate allowed the Secretary "to take such affirmative action" as he deemed appropriate. The explicit compromise language which allowed the bill to pass, said the Court, deleted the reference to the Senate's "such affirmative action" and the House language providing for criminal liability, leaving in place the House language for civil penalties. Indeed, the Court said, the atmosphere of substantial give and take suggested that the Conference Committee wanted to grant more
authority than the Senate language allowed, while eliminating the House criminal
Accordingly, compensatory damages as well as punitive damages might be allowed, and the District Court's judgment that double wages fell within the sound judgment and discretion of the court, and was not unreasonable. The District Courts decision was upheld.
The case demonstrates that there are adequate remedies available under current law to address discrimination complaints under the OSH Act. The real problem, if any exists, has been that the U.S. Department of Labor
(DOL) has been less aggressive than it should have been in pursuing such cases. This deficiency does not warrant a statutory change, but suggests that DOL should modify its enforcement policies in this area. In fact, in response to a report by the Government Accounting Office (GAO), OSHA and DOL have adopted a more aggressive stance toward employers who punish employees for complaining about safety and health problems. OSHA should pursue such enforcement, and
conscientious employers should applaud such action to enforce the law in an even-handed and exacting fashion.
This article appeared in Compliance Magazine (January 1999) and
it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS
Publishing Group. All rights reserved.
For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at email@example.com.