About two weeks ago, a divided Sixth Circuit Court of
Appeals affirmed an employer’s summary judgment in an OSHA case brought by
OSHA. Perez
v. Ohio Bell Telephone Co., No. 15-3303
(6th Cir. 7-14-16). In that
case, the DOL alleged that the employer had retaliated against 13 employees who
had work-place injuries on the grounds that the accidents had been preventable
if the employees had complied with workplace safety rules. It also sought an injunction requiring the
employer to comply with the OSH Act going forward. In response, the employer had revised the
allegedly offending policies, removed the offending disciplinary records and
compensated the employees for their unpaid suspensions. It then moved for summary judgment on the
grounds that the lawsuit was moot and the injunctive relief sought was overly
broad. The district court granted the
employer’s motion, which was affirmed on appeal. “An injunction that does no more than
prohibit any and all conduct in contravention of already existing law is
overbroad under the terms of Rule 65(d).”
According to the Court’s opinion, OSHA received 13
complaints over a 14 month period from Ohio Bell employees who had been
disciplined (with usually an unpaid suspension) after reporting workplace
injuries which the employer found to be preventable if the employees had
complied with unspecified provisions of various safety policies. Although the employer produced evidence that
it only disciplined 11% of employees who reported workplace accidents and had
found that only 29% of workplace accidents had been preventable, it revised is
policies and procedures as requested by OSHA and rescinded the allegedly
offensive policy. (There was no
discussion in the opinion about whether the employer ever disciplined employees
for violating safety rules in the absence of a workplace accident, a practice
which OSHA has previously
indicated it would interpret retaliatory).
Not surprisingly, OSHA concluded
that Ohio Bell had retaliated against the complaining employees for reporting
workplace injuries and filed suit asserting violations of §11(c), which
provides in relevant part that:
No person shall discharge or in any manner discriminate
against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to this
chapter or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others of any
right afforded by this chapter.
The Complaint sought the recission of the disciplinary
actions, the posting of a notice promising not to retaliate against employees
who engage in protected conduct and seeking injunctive relief:
permanently enjoining and restraining Defendant, its
officers, agents, servants, employees and those persons in active concert or
participation with it, from violating the provisions of Section 11(c)(1) of the
Act, and for such other and further relief as may be necessary and appropriate.
With such an injunction, the employer could be found to not
only have violated the OSH Act, but also to be in contempt of court. The defendant
employer promptly compensated the thirteen employees, rescinded their disciplinary
action, and then moved for summary judgment on the grounds that the lawsuit was
moot (in that all of the concrete requested relief had been provided) and the
injunctive relief requested was overly broad and lacked factual support (in
that the prior policies had been rescinded and OSHA had approved of the
existing policies). OSHA’s only
response was to note that it had received two additional and similar employee
complaints about the defendant employer, showing that it was still retaliating
against employees who reported workplace accidents.
The Court observed that employees were not protected from
disciplinary action merely because they had reported a workplace injury,
although their protected conduct could not be a factor in the disciplinary
action. Nonetheless,
an employee cannot “refuse to comply with occupational safety
and health standards or valid safety
rules implemented by the employer in furtherance of the Act.” 29 C.F.R. §
1977.22. An employee doing so is “not exercising any rights afforded by the
Act.” Id. As a result, an employer may take disciplinary action “in response to
employee refusal to comply with appropriate safety rules and regulations.” Id.
Such discipline imposed by an employer “will not ordinarily be regarded as
discriminatory action prohibited by section 11(c).” Id. The Act and its
regulations, however, do not provide any further elaboration as to when an
employer appropriately disciplines an employee for not complying with
mandatorily imposed health and safety guidelines and when an employer
inappropriately discriminates against an employee for refusing to be exposed to
a hazardous condition, 29 C.F.R. § 1977.12, or otherwise exercising a protected
right under the Act
In this case, the Court affirmed the dismissal and agreed
that the concrete relief sought had already been provide and that lawsuit
sought an overly broad and vague injunction:
Injunctions that do no more than compel compliance with existing
law are overly broad and do not comply with Federal Rule of Civil Procedure 65.
Because the request for an injunction was properly denied, and the Secretary’s
requests for tangible relief had, by concession, been satisfied, the district
court properly dismissed the case.
. . .
Most
importantly, a broad injunction requiring a party to obey the law would require
“that courts[,] . . . for the indefinite future[,] . . . give effect in
contempt proceedings to an order of such breadth.” Id. “The judicial contempt
power is a potent weapon. When it is founded upon a decree too vague to be
understood, it can be a deadly one.” . . . Accordingly, the provisions of Federal Rule of
Civil Procedure 65(d) are “designed to prevent uncertainty and confusion on the
part of those faced with injunctive orders, and to avoid the possible founding
of a contempt citation on a decree too vague to be understood.” . . . Injunctions that seek no more than
obedience to the law as written are deserving of scrutiny under Rule 65(d).
. . . .
There may be circumstances when obey-the-law injunctions are
justified by the facts of the case in which the injunction is sought. . . . We do not now craft a per se rule
against requests for obey-the-law injunctions. But, at a minimum, where an
injunction request is challenged on a motion for summary judgment, the party
seeking the challenged injunction is not relieved of its duty to respond to the
merits of the Rule 56 motion. The responding party must furnish facts in
accordance with Rule 56’s standards that justify the request for a broad
injunction or propose a narrower injunction in keeping with the facts of the case
viewed in the light most favorable to the non-movant.
The dissenting judge would have limited the analysis to
mootness, which she found did not exist in this case.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
