Many company arguments attacked jury instructions. The appellate court ruled that instructions were proper. Kehoe's claim, said the judges, contained four essential elements of proof. Kehoe and the state OSHA agency had evidence on all four. In retaliation cases, the first element of proof is that management fired the employee for an act authorized or encouraged by public policy, or for refusing to do an act that public policy condemns.
Public policy is found in statutes, and in other places.
Big J violated public policy by its insensitivity to the dangers of sulfuric acid. Second, the employer must know of the protected activity before firing the employee. That was a slam dunk. Before Kehoe's firing, Saiz knew what Kehoe was doing. Third, the action must relate to the protected conduct, and fourth, the employer must damage the plaintiff.