Oregon Court of Appeals Rejects Wrongful Discharge Claims for Health and Safety Retaliation
This morning the Oregon Court of Appeals rejected a plaintiff's common-law wrongful discharge claim that she was terminated for reporting a health and safety violation. The Court ruled that the state and federal statutory remedies were adequate, and that she should have filed a statutory claim instead.
Plaintiff Andrea Deatherage was an employee of Super 8 Inn when she filed a health and safety complaint against her employer with Oregon OSHA. Deatherage was terminated the next day. She sued for the common-law tort of wrongful discharge, claiming she was terminated in retaliation for filing the complaint.
In Oregon, wrongful discharge is a "gap filling" remedy that is available only when there is no adequate remedy by statute. In Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977), the Oregon Supreme Court ruled that the state and federal statutory remedies for health and safety complaint retaliation were sufficient to preclude a common-law remedy. Citing Walsh, the trial court dismissed plaintiff's claim.
So why the fuss at the Court of Appeals? Plaintiff claimed that a federal case issued since Walsh had cast doubt on whether the statutory remedies were actually adequate. The Court of Appeals rejected the invitation to ignore an Oregon Supreme Court case, and adhered to Walsh, agreeing with the trial court. (Oddly, the court declined to fill a gap in Oregon law by explaining exactly what remedies are available for an Oregon statutory health and safety reporting claim under ORS 654.062.)
So why is this case important? At this point, it creates a difference in how these kinds of wrongful discharge cases will be treated in state courts as opposed to federal courts. The World of Work will be watching future developments, as the Oregon Supreme Court may have an opportunity to weigh in on this issue.
DOL Proposes New Rule on Measuring Workplace Risks
The U.S. Department of Labor today issued this proposed rule that would change the methods the government uses to measure workplace exposures to toxic substances and hazardous chemicals.
Under the proposed rule, the DOL will require that before agencies can issue rulemaking dealing with health issues, they first must solicit input on studies, scientific information, and data on frequency, intensity, and duration of worker exposure. Rulemaking agencies, such as the Occupational Safety and Health Administration and the Mine Safety and Health Administration, will be required to publish an advanced notice of proposed rulemaking soliciting public information when developing risk assessments for health standards regulating occupational exposure to toxins and chemicals.
The proposed rule is already under attack by congressional Democrats, who describe the rule as a "secret regulation" that could have "a profound negative impact on the health and safety of American workers." The DOL will accept public comments on the notice of proposed rulemaking until Sept. 28.
