By Andrew H. Perellis, Alex W. Karasik, and Patrick D. Joyce

Seyfarth Synopsis: In a toxic tort class action stemming from automotive and dry cleaning facilities’ alleged contamination of groundwater near Dayton, Ohio, the Sixth Circuit affirmed an Ohio federal district court’s grant to certify seven common issues for classwide treatment under Rule 23(c)(4). Shortly thereafter, the four Defendant companies filed a petition for a rehearing en banc, arguing that the Sixth Circuit misapplied Rules 23(b)(3) and 23(c)(4).

This ruling is important for businesses to have on their radar since it represents another federal appellate court relaxing the barriers to issue-class certification.

Case Background

In Martin et al. v. Behr Dayton Thermal Products LLC, et al, No. 17-3663 (6th Cir. 2018), the Plaintiff residents alleged that the company Defendants released volatile organic compounds and other hazardous substances into the groundwater beneath their properties. The complaint alleged eleven causes of action: (1) trespass; (2) private nuisance; (3) unjust enrichment; (4) strict liability; (5) negligence; (6) negligence per se; (7) battery; (8) intentional fraudulent concealment; (9) constructive fraud; (10) negligent misrepresentation; and (11) civil conspiracy. Id. at *4. Plaintiffs sought Rule 23(b)(3) class certification as to liability for five of their eleven causes of action—private nuisance, negligence, negligence per se, strict liability, and unjust enrichment. In the alternative, they requested Rule 23(c)(4) certification of seven common issues.

The District Court held although Plaintiffs’ proposed classes satisfied Rule 23(a)’s prerequisites, Ohio law regarding injury-in-fact and causation meant that Plaintiffs could not meet Rule 23(b)(3)’s predominance requirement. Id. Accordingly, the District Court denied certification of the two proposed liability-only classes. The District Court then addressed Plaintiffs’ alternate request for issue-class certification under Rule 23(c)(4), considering whether predominance constituted a threshold requirement that must be satisfied with respect to the entire action before a court may certify certain issues, Id. at 4-5. Noting that this question has resulted in a conflict between several other circuits, the District Court adopted the “broad view,” and rejected treating predominance as a threshold requirement and certified seven issues for class treatment. Id. at 5. The District Court concluded its class certification decision by stating that it would “establish procedures by which the remaining individualized issues concerning fact-of-injury, proximate causation, and extent of damages can be resolved” and noting that any such procedures would comply with the Reexamination Clause of the Seventh Amendment. Id.  

Thereafter, Defendants filed a Rule 23(f) petition, arguing that the District Court reached the wrong conclusion on the interaction between Rules 23(b)(3) and 23(c)(4) and that, even under the broad view, the issue classes were insufficient. Defendants also raised Seventh Amendment arguments, citing the District Court’s mention of a potential procedure involving the use of a Special Master to resolve remaining issues. On appeal, the Sixth Circuit’s review was limited to the District Court’s decision to certify issue classes under Rule 23(c)(4). Id. at 6.

The Sixth Circuit’s Decision

The Sixth Circuit affirmed the District Court’s certification of issue classes under Rule 23(b)(3). As an initial matter, the Sixth Circuit explained that appellate courts across the country have disagreed about how Rule 23(b)(3)’s requirements interact with Rule 23(c)(4). Id. at 7. Under the “broad view,” which has been adopted by the Second, Fourth, Seventh, and Ninth Circuits, courts applied the Rule 23(b)(3) predominance and superiority prongs after common issues had been identified for class treatment under Rule 23(c)(4). Id. The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole. Id. (citations omitted). In contrast, the “narrow view,” adopted by the Fifth and Eleventh Circuits, prohibits issue classing if predominance has not been satisfied for the cause of action as a whole. Id. at 8 (citations omitted). Other circuits, including the Third and Eighth Circuits, have adopted a functional, superiority-like analysis instead of either view.

After evaluating the above approaches, the Sixth Circuit elected to adopt the “broad view” approach, holding (1) it does not risk undermining the predominance requirement since it instructs courts to engage in the predominance inquiry after identifying issues suitable for class treatment; (2) it flows naturally from Rule 23’s text, which provides for issue classing “[w]hen appropriate,” and (3) the concomitant application of Rule 23(b)(3)’s superiority requirement ensures that courts will not rely on issue certification where there exist only minor or insignificant common questions, but instead where the common questions render issue certification the superior method of resolution. Id. at 9. Accordingly, the Sixth Circuit held that a requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. Id. at 10.

Applying the “broad view” approach, the Sixth Circuit held that because each issue may be resolved with common proof and because individualized inquiries do not outweigh common questions, the seven issue classes that the district court certified satisfy Rule 23(b)(3)’s predominance requirement. Id. at 12. Further, regarding the superiority requirement, the Sixth Circuit held that the district court correctly noted that issue certification will ensure that property owners in the affected area will have an opportunity to litigate their claims, and that by trying these common questions to a single jury, this procedure also saves time and scarce judicial resources. Id. at 14. Accordingly, the Sixth Circuit held that the District Court did not abuse its discretion by certifying issue classes under Rule 23(c)(4) since the predominance and superiority requirements were met.

The Sixth Circuit also rejected the Defendants’ Seventh Amendment arguments, noting that the district court has not formalized any procedures for resolving either the common issues or the remaining individualized inquiries. Id. at 14-15. As such, the Sixth Circuit affirmed the District Court’s issue-class certification decision.

On July 31, 2018, the Defendant companies filed a petition for rehearing en banc, requesting that the entire appeals court reconsider Sixth Circuit’s affirmation of the District Court’s issue-class certification.

Implications For Businesses

For businesses located in states within the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) that are facing class action lawsuits, these companies must be cognizant that the Sixth Circuit has adopted the “broad view” of Rule 23, meaning it will be easier for plaintiffs to obtain certification of issue classes. This ultimately affords the plaintiffs’ class action bar some leverage in regards to expanding their cases and potentially increasing exposure.

From an environmental law perspective, harm to property or bodily injury, and the amount of compensation due, are almost always highly individualized and will predominate other issues.  Under the “narrow view,” class actions for toxic tort actions would be inappropriate.  However, under the “broad view,” the toxic tort class can proceed and litigate broad issues establishing the defendant’s release of contaminants and the extent of contamination.  After the issues are resolved on a class-wide basis, mini-trials or alternate proceedings are needed to establish the individualized damages incurred by each class member.  The broad view, now adopted by the Sixth Circuit, provides a plaintiff group with significant leverage against the allegedly polluting company because the contamination issues can be litigated as a class.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301.  OSHA is amending provisions of the “Improve Tracking of Workplace Injuries and Illnesses” (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA).  83 Fed. Reg. 36494 (July 30, 2018).

OSHA, in its Notice of Proposed Rulemaking (NPRM), has “preliminarily determined” that the risk of disclosure of information contained in OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), the costs to OSHA of collecting and using the information and the reporting burden on employers are “unjustified given the uncertain benefits of collecting the information.”  The proposed rule eliminates the requirement to file the Form 300 and 301 for establishments with 250 or more employees.  These large employers will still be required to electronically file the OSHA 300A summary of work-related injuries and illnesses. OSHA submits that this proposed change will maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

We had blogged previously on the WII Rule.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule..

In the proposed rule, OSHA notes that Form 301 requires the collection of sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent.  “While some of the information is likelier to be regarded as particularly sensitive—namely, descriptions of injuries and the body parts affected—most of the form’s questions seek answers that should not be lightly disclosed, including:”

  • Was employee treated in an emergency room?
  • Was employee hospitalized overnight as an in-patient?
  • Date of birth?
  • Date of injury?
  • What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific.
  • What happened? Tell us how the injury occurred.
  • What was the injury or illness? Tell us the part of the body that was affected and how it was affected; be more specific than “hurt,” “pain,” or “sore.”
  • What object or substance directly harmed the employee?

In the May 2016 final rule (81 Fed. Reg. 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually.  Individual injury and illness case information from these forms could be disclosed to third parties pursuant to FOIA requests from the public, thereby endangering worker privacy.  The NPRM proposes to amend OSHA’s new electronic recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301, to protect sensitive worker information.  OSHA also admits that it has not devised a plan for how it would “collect, process, analyze distribute, and programmatically apply” this information in a meaningful way to justify its collection.

OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure.  Comments, due on September 28, 2018, may be submitted to docket number OSHA-2013-0023.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

On August 23, 2018, our Atlanta office is hosting a hot-topic event in which our panelists will lead an interactive discussion on the trends we are seeing in OSHA regulation a year into the Trump administration. There is no cost to attend this program, but registration is required.

Employers’ expectations for a more business-friendly Agency have not materialized, as the still-leaderless Agency proceeds ahead with aggressive enforcement. The program will address timely regulatory and compliance issues for employers, including:

  • Update on OSHA under the Trump Administration and Scott Mugno’s Nomination to Head OSHA
  • Continued Aggressive Enforcement Trends Under the Trump Administration
  • Ongoing OSHA Initiatives such as Electronic Reporting
  • Workplace Violence
  • The Rise of Whistleblowers
  • Best Practices for Managing an OSHA Inspection

Thursday, August 23, 2018
3:00 p.m. – 3:30 p.m. Registration
3:30 p.m. – 5:00 p.m. Program
5:00 p.m. – 5:30 p.m. Cocktail Reception

Seyfarth Shaw LLP
1075 Peachtree Street, NE
Suite 2500
Atlanta, GA 30309-3962

This seminar is approved for 1.5 hours of CLE credits CA, IL, NJ and NY. CLE Credit is pending for GA. Credit can be applied for, but not guaranteed for all other jurisdictions.

Please click here to register. 

By Mark A. Lies, II, James L. Curtis, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  A contractor’s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment.  Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. § 1926.760(a)(l) and (b)(l)), and causing the employee’s death. The Eighth Circuit upheld the conviction.

  1. Willful Fall Protection Citation Based on Fatality Leads to Criminal Prosecution.

OSHA commonly cites construction employers whose employees fail to use fall protection.  In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA.  Employers who fail to provide and enforce the use of fall protection do so at their own peril, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties.  In the event of a fatality a willful citation can then lead to a criminal prosecution by the Department of Justice.

  1. Presence of Fall Protection Equipment Does not Negate Criminal Intent.

United States v DNRB, Inc., No. 17-3148 (8th Cir. July 17, 2018), is an example  of just this kind of prosecution, where OSHA cited the employer for a willful violation of the fall protection standard for steel erection rules, 29 C.F.R. § 1926.760.  The Contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty.

On appeal, the employer challenged the sufficiency of the evidence, several evidentiary rulings and the sentence imposing the statutory maximum fine of $500,000.  It argued that the Department of Justice failed to prove the three elements necessary to find a criminal conviction (29 CFR § 666(e)): (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.

Principally, the employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness.  The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point on the warehouse’s frame.  The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment” (emphasis added).

  1. Court Relies on Past Citation and Prior Warning to Establish Criminal Intent.

The Eighth Circuit then noted that the Contractor had a previous citation for violating the same standard (§1926.760), and so concluded that the Contractor was aware of its requirements.  “Moreover, a supervisor’s knowledge can be imputed to his employer, and there was evidence supporting a conclusion that [the employee’s] supervisor … intentionally disregarded the safety requirements here.”  In fact “a crane operator stated that he expressly warned [the supervisor] about [the employee’s] failure to use fall-protection equipment.”

Finally, the Court found that the employee would not have fallen to his death had he been connected to an anchorage point, and that the employer’s failure to make him use required fall-protection equipment was a “but-for cause” of his death.  In addition it determined that the fall was “a foreseeable and natural result” of working more than 30 feet above the ground without using fall-protection equipment.

  1. Employers Must Enforce Safety Rules and Contest Unfounded Citations.

Employers may draw numerous lessons from this case.  Foremost is the absolute importance of providing fall protection, supervising employees who are exposed to fall hazards to ensure they use the equipment, and enforcing the employer’s safety rules.  Only then will employers be able to prove the affirmative defense of employee misconduct when an employee fails to use his assigned fall protection equipment.  United States v DNRB, Inc., shows the perils for employers who fail to enforce safety rules and fail to respond to reports of noncompliance by an employee.  This case also illustrates how accepting and settling citations may set-up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident.  Employers should consult with legal counsel regarding an OSHA fall protection citation and ensure that any defensible citations are contested and vacated.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA recently released new publications directed towards safety professionals and managers. The publications offer guidance on what to look for during worksite safety check walk-arounds.  In addition, OSHA suggests that the employer’s completed 300 logs may be used by the employer as a guide to improving worksite safety.

The publications are Safety Walk-Around for Managers, Walk-Arounds for Safety Officers, and That Was No Accident! Using Your OSHA 300 Log to Improve Safety and Health.  While these publications may be useful tools to supplement current workplace safety programs and policies, these should not be considered rules or templates for adoption.  Each workplace is different and compliance may vary substantially from location to location.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a  temporary employee’s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.

Nearly two years after the last bulletin, OSHA has just released two new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation.  See Temporary Worker Initiative (TWI) Bulletin No. 8 – Respiratory Protection, and Temporary Worker Initiative Bulletin No. 9 – Noise Exposure and hearing Conservation.

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: “OSHA Releases Two More Temporary Worker Guidance Documents,” “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

Under TWI Bulletin No. 8, OSHA notes that both the host employer and staffing agency are “jointly responsible to ensure workers wear appropriate respirators when required. While both the host and the staffing agency are responsible to ensure that the employee is properly protected in accordance with the standard, the employers may decide that a division of the responsibility may be appropriate. Neither the host nor the staffing agency can require workers to provide or pay for their own respiratory protection when it is required.”

Under TWI Bulletin No. 9, OSHA notes that both the host employer and staffing agency are jointly responsible for ensuring that “workers receive protection from hazardous noise levels when it is required under OSHA standards. Neither the host nor the staffing agency can require workers to provide or pay for their own hearing protection devices or require workers to purchase such devices as a condition of employment or placement. In addition, employees must be paid for the time spent receiving their audiograms, and the audiograms must be at no cost to the employee.”

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are jointly responsible for temporary workers’ safety and health. However, as the two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency’s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.

The U.S. Environmental Protection Agency’s (USEPA) current regulations implementing Clean Water Act (CWA) section 404(c) allow the Agency to veto at any time during the permitting process a permit issued by the U.S. Army Corps of Engineers (USACE) under CWA section 404(a) that allows for the discharge of dredged or fill material at permitted sites.  USEPA has historically taken the position that it can preemptively veto a permit before, during or after a 404(a) application is filed or a permit is issued.

In a memorandum last week, USEPA Administrator E. Scott Pruitt directed the Office of Water to develop a proposed rulemaking that would end USEPA’s preemptory and retroactive 404(c) veto power. Administrator Pruitt said that it was his goal to refocus EPA “on its core mission of protecting public health and the environment in a way that is fair and consistent with due process.”  He continued that EPA “must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

Administrator Pruitt indicated that the “regulations were last revised nearly 40 years ago“ and “EPA’s regulations should reflect today’s permitting process and modern-day methods and protections, including the robust existing processes under the National Environmental Policy Act.”

Accordingly, the memo directs USEPA’s Office of Water to develop a proposed rulemaking that would consider the following changes:

  • Eliminating the USEPA authority to initiate the section 404(c) process before a USACE 404(a) permit application has been filed with the USACE or a state, otherwise known as the “preemptive veto.”
  • Eliminating the authority of USEPA to initiate the section 404(c) veto process after a USACE 404(a) permit has been issued by the USACE or a state, otherwise known as the “retroactive veto.”
  • Requiring a Regional Administrator to obtain approval from USEPA Headquarters before initiating the section 404(c) veto process over a USACE 404(a) permit.
  • Requiring a Regional Administrator to review and consider the findings of an Environmental Assessment or Environmental Impact Statement prepared by the USACE before preparing and publishing notice of a proposed determination.
  • Requiring USEPA to publish and seek public comment on a final USEPA determination before such a determination takes effect.

We have previously blogged on related wetlands topics, including Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial Review, Sackett v. EPA: Supreme Court Decides Unanimously In Favor Of Landowners, and New Wetlands Definition.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Patrick D. Joyce, and  Craig B. Simonsen

Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.

Electronic submission of 2017 Form 300A data is due by July 1, 2018 for establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries. Form 300As should be submitted using OSHA’s Injury Tracking Application (ITA).

Each establishment’s Form 300A for 2018 will be due March 2, 2019. We will continue to monitor OSHA’s activities relating to this rule. OSHA has indicated that it will be reviewing the rule and will be issuing future guidance or revisions.

Employers operating facilities in state plan states should check with their local state plan office to confirm each individual state’s e-filing requirements. For example, Kentucky OSHA requires e-filing using Federal OSHA’s ITA, while the State of  Washington has indicated that employers with facilities in Washington State are not required to e-file on Federal OSHA’s ITA.

We have previously blogged concerning OSHA’s contentious electronic reporting rules.  See All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data, OSHA Intends to “Reconsider, Revise, or Remove Portions” of Injury and Illness E-Reporting Rule Next Year, OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017, and Despite Lawsuit, OSHA Publishes Interpretation for New Workplace Injury and Illness Reporting Rule.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced a Request for Information (RFI) on safety improvement technologies for mobile equipment and for belt conveyors, both at surface mines. 83 Fed. Reg. 29716 (June 26, 2018).

In its RFI MSHA notes that “mining safety could be substantially improved by preventing accidents that involve mobile equipment at surface coal mines and metal and nonmetal mines and belt conveyors at surface and underground mines.”  As part of an “Awareness Campaign” on mobile equipment and conveyor belts, MSHA is seeking information on the role of engineering controls that that might (1) increase the use of seatbelts, (2) enhance the equipment operator’s ability to see all areas near the machine, (3) warn operators of potential collision hazards, (4) prevent operators from driving over a highwall or dump point, and (5) prevent entanglement hazards near moving or re-energized conveyor belts.  MSHA indicates that it is requesting this information and data to reduce the risk of accidents and to improve miner safety.

MSHA is also indicating that it will hold stakeholder meetings to provide interested stakeholders with an opportunity to discuss and share information about the issues raised in the RFI.  It will publish a separate notice announcing the stakeholder meetings in the Federal Register at a later date.

Comments and responses to the RFI are due by December 24, 2018.  Submissions and responses to the RFI may be found at docket number MSHA_FRDOC_0001.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.

In Acosta v Dura-Fibre, No. 17-C-589, 27 OSHC 1179 (ED Wis. May 30, 2018), under the employer’s, Dura-Fibre, LLC’s (Employer), Accident Reporting/Investigation Plan (Injury Reporting Policy), if an employee is injured or almost injured at work, he must report the injury or “near miss.”  The Employer instituted the Injury Reporting Policy to emphasize timeliness in reporting injuries and to create a “near miss” program to increase reports of unsafe acts that did not result in injury.   The Injury Reporting Policy required that an employee notify a supervisor of an accident or “near miss” as soon as possible, or by the end of the employee’s shift.  The Injury Reporting Policy defined accident as “any occurrence that led to physical harm or injury to an employee and/or led to damage of company property” and near miss as “any occurrence that did not result in an accident but could have.”

The Employer required that employees report all injuries, even if the employee did not consider the injury to be serious.  Any employee that failed to report an accident or near miss in a timely manner could be subjected to discipline up to and including termination.  After the company’s assessment of the injury report, a “Safety Incident Report” would be prepared that determined whether the employee should receive disciplinary points in accordance with the Employer’s 24-point disciplinary program.  Under the disciplinary program, employees may be assigned a designated number of points for violations of the company’s rules and policies, such as failing to report an injury to a supervisor by the end of his shift, failing to use safety equipment, or committing an “unsafe act.”

The Injury Reporting Policy does not, though, define the phrase “unsafe act.” With the uncertain definition of the term “unsafe act” and the disciplinary points employees could receive for committing an “unsafe act,” the Secretary argued that employees were naturally reluctant to report injuries or illnesses they sustained.

The Court noted that as such, employees who suffered injuries on the job found themselves in a classic “catch 22”: “if they are injured at work, they must report the injury to a supervisor or face discipline, but if they do report an injury, management may well conclude the injury resulted from their own unsafe act for which they will also face discipline. Either way, the employee risks discipline.”  It is in this context that this claim arises.

The Secretary asserted that the Employer violated section 11(c) the OSH Act when it retaliated against the Employee by assessing him disciplinary points after he reported injuries on two separate occasions, and then ultimately terminated him under its disciplinary policy.

The Employer did not dispute that the Secretary had satisfied the first and second elements of the prima facie case.  The Employee engaged in protected activity when he reported to company management that he injured his ankle and another employee injured his shoulder. The Employee suffered three adverse actions in the form of disciplinary points for the late reporting of the other employee’s injury, and for engaging in an unsafe act in relation to his own injury, as well as termination of his employment.

The Court found sufficient evidence of pretext from two sources.  First, the Company did not discipline employees who reported “unsafe acts” relating to near misses.  Accordingly, the Court concluded that injured employees were allegedly more likely to be disciplined and thereby deterred from reporting .  Second, the Court noted that the Employer failed to follow its own accident investigation procedures.  The Court found a  technical “apparent deviation” from the procedure enough to be a triable issue, and denied summary judgment.  The case will proceed to trial.

Accordingly, employers need to maintain reporting policies with regard to all unsafe acts, near misses, and accidents.  Employers must consistently investigate accidents and enforce all safety rules.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teams.