Safety and OSHA News

Was employee fired as retaliation or for sleeping on the job?

The U.S. Department of Labor (DOL) claims this employer violated the Occupational Safety and Health Act (OSH Act) by firing two employees because they made safety complaints. The company says it had legit reasons for the firings. 

Just a few months ago, the Occupational Safety and Health Commission reduced fines 74% for Lloyd Industries of Montgomeryville, PA, from $822,000 to $209,500. OSHA issued the fines after an employee hadt three fingers amputated in a machine. This case of alleged retaliation revolves around the same injury and OSHA fines.

The DOL says Matthew Spillane and Santa Sanna were wrongfully terminated for helping OSHA identify hazards at Lloyd in light of the amputation case. Federal investigators say Spillane was fired because he took and shared photos of the machine that caused the amputations, leading to the OSHA fines. The DOL also says Sanna was fired because he testified at an OSHA hearing and is the grandfather of the injured employee.

Lloyd counters Spillane was fired for sleeping on the job and Sanna was terminated because he didn’t adequately perform his duties as plant manager, including overseeing OSHA compliance.

The company asked for summary judgment, in other words, that a federal court throw out the case.

To prove retaliation under the OSH Act, an employee must show:

  1. participation in a protected activity
  2. a subsequent adverse action by the employer, and
  3. evidence of a causal connection between the protected activity and the adverse action.

The protected activity in this case was making a report to OSHA. The adverse action: getting fired. No one disputed that either one of those things happened.

The only real question in this case is whether there was a causal connection between Spillane’s and Sanna’s actions and losing their jobs.

Timing between protected actions and a firing can point toward retaliation.

Lloyd argues the DOL can’t show a timing link between when Spillane took photos (July and August 2014) and when he was terminated (November 2014).

But the court noted that on Nov. 13, 2014, OSHA inspectors arrived at the Lloyd plant. Spillane was fired five days later.

Lloyd also argued that six months passed between when the employee who suffered amputations reported the company to OSHA and Sanna’s termination (remember, Sanna is the injured employee’s grandfather).

However, the court points out Sanna was fired on May 11, 2015 – the same day the company received its OSHA citations.

The federal court found the DOL had sufficient evidence to suggest the company fired Spillane and Sanna because of their roles in the OSHA investigation.

The case will now go to trial. It’s possible Lloyd will have to pay Spillane and Sanna back wages and damages.

(Secretary of Labor v. Lloyd Industries Inc., U.S. District Court, E.D. PA, No. 16-1079, 12/5/17)

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Comments

  1. Tom Rezner, Ph.D.,SPHR, CSM says:

    People who don’t maintain a safe workplace and people who sleep on the job need to be fired. Sanna should have been fired because as Plant Mgr. he failed to maintain a compliant plant unless of course he has evidence he tried and Lloyd Industries wouldn’t let him. That Sanna testified is immaterial since we don’t know what he said and probably had no choice in the matter. If Spillane was caught sleeping. That is always a firing offense. If it was faked by management then it is retaliation. His action of taking photos might be against company policy and be a firing offense for the action no matter what he did with the photos. That is a big problem with OSHA they can’t seem to separate rule violation as a firing offense from “reporting a injury”. In 35 years I have never seen anyone fired for reporting an injury. A rule violation is a different matter. But you can’t let one guy off for a rule violation because he got hurt and another guy be penalized because he didn’t get hurt.

    • David Combs, MS, CSP, CFPS, CPSI says:

      I agree Tom. If Sanna was the Plant Manager, he should be held accountable for the lack of safety controls unless, as you stated, he can prove his efforts to do so were thwarted by ownership. If the company has lost confidence in his ability to lead then they should have the right to get rid of him without fear of retaliation.

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