Under Michigan’s Occupational Health and Safety Act (“MiOSHA”), employers may not “discharge an employee or in any manner discriminate against an employee because the employee filed a complaint” regarding the employer’s unsafe working conditions, among other things. MCL 408.1065(1). Any employee who “believes that he or she was discharged or otherwise discriminated against by a person in violation of this section may file a complaint” with the Department of Labor of Economic Opportunity (LEO) within 30 days after the violation and, upon receipt, LEO’s Occupational Health and Safety Administration will conduct an investigation, determine if a violation occurred, and order appropriate relief, including reinstatement. MCL 408.1065(2). Although some have considered that an adequate remedy for alleged retaliation, the Michigan Supreme Court did not believe so. Accordingly, in addition to the remedies provided in the Act, the Court recently upheld the right of employees to bring “public policy” causes of action against employers for OSHA/MiOSHA violations.
In Stegall v. Resource Tech Corp., No. 165450; 2024 WL 3503503 (Mich. Sup. Ct. Jul. 22, 2024), the plaintiff was an employee of an auto manufacturer. In April 2022, the plaintiff complained to his supervisors regarding possible asbestos in the workplace. His supervisors indicated that they would provide air quality tests. Although the employer-provided personal protective equipment for the employees, the employer did not give the results of the air quality tests. The plaintiff sent another communication, but the supervisors did not respond. A couple of months later in June 2022, the employer ceased operations on its second shift and terminated the plaintiff. The plaintiff filed a lawsuit against the employer, alleging, among other things, a violation of public policy. The trial court dismissed the public policy claim. The Court of Appeals affirmed, concluding that the public policy claim was “preempted by OSHA and MiOSHA.” Id. a *3.
In a 4-3 decision, the Michigan Supreme Court disagreed, which is inconsistent with Dudewicz v. Norris Schmid, Inc., 443 Mich. 68 (1993), where the Michigan Supreme Court stated: “a public policy claim is sustainable then only where there is also not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” The majority in the Court of Appeals relied on Dudewicz and concluded that because OSHA and MiOSHA included an anti-retaliation provision, those remedies were exclusive, and therefore, the plaintiff’s public policy claim was pre-empted.
Beginning its analysis, the Court noted that, as a “general rule, an employee subject to an at-will employment contract may be terminated at any time for any reason.” Id. at *5 (citations omitted). “However, an exception has been recognized to that rule, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. (citations omitted). The Court distilled the framework in this way:
When examining whether a public policy claim based on alleged retaliatory action by the employer may be asserted, the threshold inquiry is whether the pubic-policy claim is based on a statute that has an anti-retaliation provision. If so, the court must then ask whether the remedies of the underlying statute are exclusive. If deemed exclusive, the public policy claim is preempted. But if the remedies are cumulative, the public policy claim may proceed.
Id. at *6.
To determine if the remedies are exclusive or cumulative, the Court held that “[w]here a statute creates a new right or imposes a new duty not previously recognized under the common law, the remedies are presumed exclusive unless the remedies are plainly inadequate or there is clear contrary intent.” Id.
Applying this framework to MIOSHA’s anti-retaliation statute, the Court held that the “remedies provided in OSHA and MiOSHA are plainly inadequate to provide an employee with sufficient redress.” Id. at *10. Specifically, the Court held the “30-day limitation, the unfettered discretion granted to the department, and the employee’s lack of control over what occurs after a complaint has been filed collectively provide sufficient reason to conclude that the remedies in OSHA and MiOSHA are plainly inadequate.” Id. The Court also noted that OSHA and MiOSHA do not provide for a private cause of action. Thus, the remedies are “merely cumulative,” and the Court allowed the plaintiff to bring his public-policy action, in addition to seeking the remedies in the MiOSHA statute.
Another interesting point was whether the plaintiff had a claim under the Whistleblower Protection Act (“WPA”); however, the Court found that the WPA claim was not before it and did not analyze whether the WPA would preempt a public policy claim.
Takeaways:
Michigan employees now have a potential cause of action for retaliatory discharge for exercising rights under OSHA and MiOSHA. Additionally, the issue of pre-emption of the WPA may now be raised in the lower courts despite Dudewicz. The remedies under the WPA are significantly different than those under OSHA and MiOSHA. A plaintiff may claim that the 90-day statute of limitations in the WPA makes the WPA an inadequate remedy, but courts would have to effectively overturn clear statutory language that a WPA claim must be filed within 90 days by permitting a claim for a violation of public policy to go forward for a WPA violation.
Here are two things Michigan employers should do in light of the Cleveland Stegall decision:
- Employers should be careful when considering adverse employment action against an individual who has made recent complaints regarding workplace safety issues. Taking an adverse employment action after an employee makes a complaint may expose the employer to retaliation claims, irrespective of whether there is support.
- When responding to retaliation claims, employers need to consider the reality that the employee’s remedies are cumulative, and they make seek relief under the statute, as well as under Michigan’s “public policy.”
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About the Authors:
Aaron Burrell
(Member, Detroit & Troy) focuses his practice in the areas of complex commercial litigation, labor and employment law, appellate law, and minority business enterprises. Aaron can be reached at at ABurrell@dickinsonwright.com. His full bio can be viewed here.
Tim Howlett is a Member in Dickinson Wright’s Detroit office. His practice involves counseling clients on labor and employment issues and litigation. Tim can be reached at THowlett@dickinsonwright.com and you can access his bio, here.