2005 Law.Com OSHA Returns to Viability As Source of Public Policy Sidney Steinberg The

OSHA Returns to Viability as Source of Public Policy

Sidney Steinberg The Legal Intelligencer 12-15-2004

Prior to the Pennsylvania Supreme Court's decision in McLaughlin v. Gastrointestinal Specialists Inc., Pennsylvania state courts and courts applying Pennsylvania law had consistently found that the Federal OSHA law, with its anti-retaliation provisions, could form the basis for a wrongful discharge claim in violation of Pennsylvania public policy.

In McLaughlin, the Supreme Court held that a wrongful discharge plaintiff "must allege that some public policy of this commonwealth is implicated, undermined or violated because of the employer's termination of the employee. Public policy of the commonwealth must be just that, the policy of this commonwealth."

Despite McLaughlin's evidence that she was terminated for complaining to her supervisor about a perceived OSHA violation, she was unable to state a claim for wrongful discharge because (principally) OSHA is a federal, not state, law.

The McLaughlin decision appeared to be so cut and dry that the law was, for once, clear. Lawyers throughout the state understood that OSHA (or any federal law, for that matter) could not form the basis for a viable wrongful discharge claim in Pennsylvania.

BLACK MOLD NEXT DOOR

A recent decision from the U.S. District Court for the Eastern District of Pennsylvania, however, revives OSHA as a source of Pennsylvania public policy when read in conjunction with an obscure Pennsylvania statute.

In Wetherhold v. Radio Shack Corp., David Wetherhold was the manager of a Radio Shack at the Lehigh Shopping Center in Bethlehem. During the course of construction in the space next to his store, Wetherhold noticed a noxious order and construction workers wearing respirators. It turned out that the construction site had "black mold."

Wetherhold reported this situation to OSHA, which issued a letter to Radio Shack in late February 2002. Radio Shack terminated Wetherhold's employment a few weeks later, and he brought a claim for wrongful discharge in violation of Pennsylvania public policy.

Radio Shack moved to dismiss the complaint, relying principally upon McLaughlin's direction that a claim for wrongful discharge in Pennsylvania must be predicated upon the law of the commonwealth. OSHA, as a federal law, could not support the cause of action.

PUBLIC POLICY

It appears from the court's opinion that Wetherhold filed an amended complaint referencing the "Pennsylvania Health and Safety Act"(which should have been called "The General Safety Law") as a source of Pennsylvania public policy. As it turns out, however, the Pennsylvania Health and Safety Act did not support Wetherhold's position.

In his reply brief, Wetherhold instead referenced the Pennsylvania Worker and Community Right-to-Know Act, claiming that this law, referred to as the PWCRA, was the link between Pennsylvania public policy and OSHA, thereby distinguishing this case from McLaughlin.

The court reviewed the PWCRA and found that it expressly states that it is "to be read in conjunction with any provision of federal law providing for the identification, labeling or providing of information concerning hazardous substances and is intended to supplement such federal regulation in the interests of protecting the health and safety of citizens of the commonwealth."

Furthermore, the PWCRA provides that "no employer shall discharge or cause to be discharged … an employee because the employee has filed a complaint." In short, the court read PWCRA as turning OSHA into "a clear mandate of public policy" of the commonwealth.

Rather than seeing McLaughlin as a sweeping declaration of Pennsylvania law, the Wetherhold court read the case as narrowly limited to the facts presented. Specifically, in McLaughlin, not only did McLaughlin cite OSHA as the sole source of public policy, but she also did not assert that she was fired for complaining to a governmental agency, in this case, the Occupational Safety and Health Administration. Instead, she kept her complaints internal within the company.

To the contrary, Wetherhold complained to the Occupational Safety and Health Administration directly. As such, Wetherhold satisfied the requirement that, in order to state a wrongful discharge claim, his termination must be as the result of an employee's compliance with or refusal to violate the law. As in the McLaughlin case, internal whistle- blowing has never been recognized to support a viable wrongful discharge claim. In Wetherhold, however, under a liberal pleading standard, the court could find that OSHA required Wetherhold to complain as he did.

The PWCRA is hardly a hotbed of litigation. In fact, prior to Wetherhold, it appears to have been cited in cases only two other times, and not at all since 1989.

Nevertheless, the PWCRA appears to be a clear link to enable employees to bottom wrongful discharge claims on OSHA complaints. While it is too early to anticipate a flood of wrongful discharge/OSHA cases, Wetherhold returns OSHA to viability as a source of Pennsylvania public policy.

Sid Steinberg is a partner in Post & Schell's business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.ncluding Title VII, the FMLA and the ADA.