A dispatcher, Mary Smith, allergic to cigarette smoke wrote a letter to the Estill County Judge Executive, Wallace Taylor, asking that the Fiscal Court prohibit smoking in the county's 911 dispatch room. In response, Judge Taylor had Smith removed from the work schedule, effectively terminating her employment. How dare Smith the Judge must have thought!
After being removed from the dispatcher's schedule, Smith filed a complaint with the Kentucky Occupational Safety and Health Review Commission claiming that her removal from the schedule was unlawful retaliation for complaining about a workplace safety issue. The Commission found in Smith's favor and ordered she be reinstated and paid her lost back wages.
The issue that got to the Kentucky Supreme Court was whether Smith's letter to Judge Executive Taylor was a "complaint" under Kentucky's workplace safety law, KRS Chapter 338. The Court in a unanimous opinion written by Justice Michelle Keller ruled that Smith's letter was such a "complaint" and, therefore, that Smith was protected from retaliation for making such a report. As support for this conclusion, the Court referred to the plain and ordinary meaning of "complaint", how workplace safety laws have been interpreted in other states, how the federal workplace safety law has been interpreted and finally to a prior decision by the Kentucky Court of Appeals, Terminix Int'l, Inc. v. Sec'y of Labor, 92 SW3d 743 (Ky App 2002), where the court ruled that "a threat by the mother of an employee to report her son's supervisor to KOSHA constituted a 'complaint.'"
The Kentucky Supreme Court's case is KOSHA v. Estill County Fiscal Court.
Also notable about the case is that the Labor Cabinet started out on the same side as the employee and the Commission when the case started going through the courts. However, when Gov. Matt Bevin took office on December 8, 2015, the Labor Cabinet changed its position and joined the Fiscal Court in arguing that Smith could and should be fired for reporting a workplace safety issue.
Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees in employment law cases; contact him at 859-254-7076.
