Common law retaliatory discharge claims

The provisions of OSHAct §11(c) were initially designed to protect workers who raised concerns regarding safety.  The extension to protect individuals who refused dangerous work was more controversial and was ultimately resolved in the Whirlpool case.  But 11(c) protections are limited as much by their procedure as by their substance, and so workers have turned to other avenues to protect themselves from retaliation after raising safety complaints.  Not surprisingly, the ‘just cause’ provisions of collective bargaining agreements provide the quickest and most certain relief from retaliation.  But what about non-union, at-will individual employees like Kenneth Prill? The ineffectiveness of administrative remedies for whistleblowers under OSHA §11(c) and the limited availability of Section 7 protection have helped to encourage the variety of common law theories and actions in which employees attempt to challenge discharges.

Many states with public policy exceptions to the at-will doctrine have recognized causes of action for people who allege they were terminated because of raising health and safety concerns.  A more difficult question arises when the specific complaint is raised within the OSHA context:  Will a state recognize a public policy rooted in the federal statutory scheme of OSHA?  And, if so, does OSHA’s Section 11(c) preempt the state cause of action?