In the plaintiff’s Complaint, she alleged she was employed by AAI, a wholly-owned subsidiary of Edwards & Associates, Inc., and her job entailed finishing interior plastics. She alleged that on October 24, 2006, she reported an OSHA-reportable violation pertaining to fiberglass sanding to her supervisor, and that her supervisor told her to directly confront the employee, in violation of regulations. One of the major questions put before the Court was whether the discretionary administrative remedies described in TOSHA at Tenn.Code Ann. § 50-3-409 preclude a retaliatory discharge victim from pursuing a public policy common law retaliatory discharge claim?
The Court of Appeals here relied upon the holding and analysis of Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992) stated that resolution of this issue “necessitated an examination of the state of the law on retaliatory discharge at the time the statute was enacted.” Id. at 898-899. The Court stated as follows and explained that if the statute created a new right and prescribed a remedy for its enforcement, then “the prescribed remedy is exclusive.” Id. at 899. Further, the Court explained that when a common law right already exists, and a statutory remedy is subsequently created, the “statutory remedy is cumulative unless expressly stated otherwise”, because the legislature is “presumed to know the state of the law on the subject under consideration at the time it enacts legislation.”
The Tennessee Occupational Safety and Health Act “TOSHA” creating a new right and remedy was enacted in 1974 which is several years prior to Clanton v. Cain Sloan Co., 677 S.W.2d 441 (Tenn.1984). In Clanton, the Supreme Court first recognized the tort of retaliatory discharge. Therefore, the Court of Appeals in Boyd found that the statutory remedy was exclusive. Thus, an employee could not bring forth a common law claim of retaliatory discharge. This analysis and holding was upheld by a federal court in Ellis v. Rexnord, 2007 WL 2509689 (E.D.Tenn. Aug.30, 2007). The disadvantage to employees here is that primarily at trial prosecuting a common law retaliatory discharge claim, the employee is only required to prove that the reporting of the workplace safety was a substantial factor in the employer’s decision to retaliation rather than the sole factor being a much higher evidentiary threshold.
The specific TOSHA statute Tenn.Code Ann. § 50-3-409 prescribes as follows:
(a) No person shall discharge or in any manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or because of the exercise by the employee on behalf of the employee or others of any rights afforded by this chapter.
(b)(1) Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty (30) days after the violation occurs, file a complaint with the commissioner of labor and workforce development alleging the discrimination.
(2) Upon receipt of the complaint, the commissioner shall cause an investigation to be made that the commissioner deems appropriate.
(3)(A) If, upon investigation, the commissioner determines that this section has been violated, the commissioner shall bring an action in any appropriate chancery court against the person.
(B) In any such action, the chancery courts shall have jurisdiction, for cause shown, to restrain violations of subsection (a) and order all appropriate relief, including rehiring or reinstatement of the employee to the employee’s former position with back pay.
(c) Within ninety (90) days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant of the commissioner’s determination under subsection (b).
If you are an employee who has concerns about work place safety to yourself or other employees, then you can file a complaint with TOSHA administration which is part of the Tennessee Department of Labor at:
https://www.tn.gov/workforce/employees/safety-health/tosha-redirect/file-a-safety-complaint.html
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