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This much is clear: If a worker contacts OSHA about a workplace safety problem, and the company fires the employee for that reason, that worker is eligible for whistleblower protection. But this case is somewhat different.

Jessie Akers was a manager at a Wal-Mart Tire and Lube Express location in Winchester, TN.

In 2009, a customer returned two defective tires that were purchased at the store. Akers discounted replacement tires to $50 each. The customer thought the new tires would be free and didn’t bring money.

Akers allowed the customer to have the tires with a promise to return with the money. That never happened.

Wal-Mart presented Akers with a restitution note for the unpaid tires. He signed the note and repaid the $100.

Despite that, Wal-Mart fired Akers for allowing a customer to leave with merchandise without paying. Akers claims he was really fired for another reason.

As supervisor of his department, Akers kept a door to the stock room unlocked to provide access to an emergency exit.

Wal-Mart’s local asset protection coordinator told Akers that the door should remain locked even though the public couldn’t access it.

Akers told the asset protection coordinator that the fire marshal or OSHA may need to be contacted because the locked door was a safety hazard to employees.

And that’s what Akers claims was really behind his firing — his threat to call OSHA. He took his case to court, claiming retaliatory discharge. Wal-Mart filed a motion to have the case thrown out.

The court sided with Wal-Mart. Reason: Intention to contact OSHA isn’t the same as actually contacting the agency. For whistleblower protection, Akers would have needed to file a complaint with OSHA or another safety agency. Case dismissed.

(Akers v. Wal-Mart, U.S. Dist. Crt. E.D. TN, No. 4:10-cv-41, 3/3/11)

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Tags: fire exit, retaliatory discharge, Wal-Mart, whistleblower