In what’s being called a “significant win for whistleblowers,” a federal court has ordered Lear Corp. to stop retaliating against an employee for going to the media about workers’ chemical exposure.
A preliminary injunction issued against the car seat manufacturer, prohibits it from:
- suspending, harassing, suing, threatening, intimidating, or taking any other disciplinary or retaliatory action against any current or former employee based on the belief that such the employee exercised any rights under the Occupational Safety and Health Act
- telling any current or former employee not to speak to or cooperate with representatives of the Secretary of Labor (OSHA’s parent department)
- obstructing any investigation by the Secretary of Labor or its designee, and
- suing current or former employees because of those individuals’ complaints about health and safety or because they engaged in protected activity under the OSH Act.
Lear employee Kimberly King raised health concerns about exposure to the chemical called toluene diisocyanate (TDI) while working at the company’s Renosol Seating plant in Selma, AL.
King started working on the plant’s production line in 2004. On May 8, 2014, King and nine other employees gave the plant’s HR director signed letter about TDI leaks at the plant and their health concerns. The letter asked Lear to:
- provide free medical screenings to all workers in the plant to test breathing
- explain why TDI alarms went off multiple times in the preceding two weeks, and
- provide copies of the plant’s OSHA injury logs.
Lear hired an independent company to test the plant’s air for TDI. OSHA also tested the air. Both found levels were within legal limits.
However, employees may still become sensitized to TDI even when levels are within OSHA’s legal limits, resulting in health problems such as asthma. Lear and OSHA shared information with employees regarding the TDI air results and health effects.
In November 2014, OSHA issued multiple citations to Lear, including failure to:
- require employees to wear protective equipment when handling TDI
- require employees to use appropriate hand protection when handling TDI
- train employees about the physical and health hazards of TDI, and
- record injury or illness on their OSHA 300 Log and 301 Incident Report.
OSHA and Lear reached an informal settlement to correct the violations. OSHA withdrew one citation about protective equipment.
During OSHA’s investigation, King spoke with media outlets about her health and the plant. Two articles were published and included information from a doctor who reviewed King’s case. The doctor said King’s medical “tests are consistent with isocyanate asthma.”
Lear moved King and two other employees from the production line to the warehouse to ensure they didn’t come into contact with TDI. They received the same pay at their new positions.
In late 2014 or early 2015, King and another employee participated in a video about the plant, TDI and their health. The video wound up on YouTube.
On Jan. 21, 2015, Lear suspended King and the other employee for three days without pay for participating in the video.
In March 2015, an organization posted photos of King on its Facebook page with the caption, “Making seats for Hyundai made Kim King sick, but she continues to march on in Selma.” (Lear manufactured the car seat foam for Hyundai.)
On March 5, 2015, King went to the Hyundai plant in Alabama to deliver a letter signed by herself and others, demanding the automaker require Lear to “make the necessary investments to ensure good, safe, fair working conditions throughout its supply chain.”
Lear suspended King for seven days without pay after she attempted to deliver the letter to Hyundai and then fired her on March 16. The company also filed a lawsuit against the employee alleging she continued to publicly claim TDI made her sick. Lear sought to prevent her from making “false statements and assertions to the media and third parties” about unsafe working conditions.
King asked a federal court for an injunction against Lear, claiming she suffered retaliation.
Lear responded that no employee suffered retaliation. The company says it fired King for defamation and interfering with its relationship with its customer.
To approve an injunction, the court had to determine whether King could prevail with her retaliation claim.
The court found King’s participation in the video, speaking to the press and complaining to OSHA “constitute protected activity” for employees under the OSH Act. Therefore the federal court concluded King established that she could prevail in her retaliation claim against Lear, and it approved the temporary injunction.
A National Law Review article says:
“The injunction is a significant win for whistleblowers because the court’s order broadly construes the scope of protected whistleblowing to include disclosures to the media, and it signals OSHA’s stepped up enforcement of whistleblower protection laws.”
(Secretary of Labor v. Lear Corporation, U.S. District Crt., S.D. Alabama, No. 15-0205-CG-M, 5/7/15)