Randall K. Rathbun is once again recognized in the 2021 Edition of Best Lawyers in America for his high caliber of work in the practice areas of Employment Law – Individuals and Litigation – Environmental. He has been recognized by his peers since 1995.
Wichita has had a rough couple of months when it comes to workplace accidents. It seems like every time the news comes on there is another large-scale workplace accident that has claimed another life. Employers should always look for ways to increase workplace safety. Employees, however, might fear being terminated or retaliated against for reporting workplace safety issues.
While it is true that Kansas is an at-will employment state, meaning you can be fired at any time and for any reason as long as it is not discriminatory, the Kansas Supreme Court has carved out a public policy exception to the at-will status of employees. This public policy exception functions as a sort of whistleblower protection. It protects employees who have been fired for reporting a violation of the law if a “reasonably prudent person” could conclude that either a co-worker or an employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer knew that the employee reported the violation before being terminated; and the employee was discharged in retaliation for making the report.
How would this look in practice? Say, for instance, that you work as a truck driver and you have a set number of hours you are allowed to drive. If your employer is making you drive in excess of those legally permitted hours and endangering the lives of other motorists on the road, what can you do? You can report it to the applicable regulatory agency, which in this instance would be the Department of Transportation. To ensure that you are protected under the public policy exception the employer must know that you reported the violation. If your employer terminates you following the reporting of the violation, then you most likely have a viable case for retaliatory discharge. What are you allowed to recover in a case for retaliatory discharge? Typically, you can recover back pay, front pay, damages for emotional distress, and punitive damages (if the circumstances support it).
Another example is the Occupational Safety and Health Administration (OSHA) regulations. These guidelines are put in place to protect worker safety and are often violated in order to save costs. The recent horrific accident in Bel Aire where a 29-year-old man was killed when a trench he was working in collapsed is currently being investigated by OSHA. OSHA requires trench shoring to stabilize the sides of all trenches over five feet deep. The use of trench shoring and other OSHA safety regulations is exactly the type of regulation anticipated by the public policy exception. Reporting the failure to use trench shoring, or some other type of OSHA requirement by employees is a protected act under the public policy exception in Kansas and if you are terminated as a result you could have a viable case for retaliatory discharge.
The above examples are not exhaustive. The whistleblower protections apply to the reporting of all violations of rules, regulations, or laws pertaining to public health, safety, and the general welfare. Some other examples are reporting misuse of funds, mishandling chemicals, and failing to comply with licensing requirements.
If you believe that you have been retaliated against for reporting a violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare, then you may have a case. Whistleblowers are protected from retaliation in employment in Kansas to the extent that they act in good faith. If your employer is violating the law and endangering your safety, it is always best to consult an attorney. If you fear that your employer will retaliate against you for reporting a workplace safety violation, then you should always ensure that you will be protected before taking any action.
Benjamin K. Carmichael
January 15, 2018
Depew Gillen Rathbun & McInteer, LC
This article is based on hypothetical facts and is issued for general informational purposes only. It is not intended to be construed or used as legal advice.