A Snarky Guide to the Eclipse, Worker Safety and a Homage to The Day of the Triffids


Tomorrow is the much-awaited Eclipse and employers are beginning to worry that they may not have taken all appropriate steps to protect their employees. Shockingly, OSHA does not maintain a Workplace Eclipse Safety Standard. Accordingly, employers should analyze the hazards presented by an Eclipse as they would any other hazard at the workplace. Even if spiders, snakes and poison ivy are universal, employers nonetheless protect their employees from these hazards when present in the workplace.

  1. Assume that employees will not exercise common sense and use good judgment. As an example, the most common reaction of a diner when told that their plate is “very hot,” is to … you guessed it …. Touch said hot plate.
  2. Education is the essential first step for every employer. Every news outlet in the free world is talking about Eclipse safety, but do not assume that your employees read the omnipresent recommendations. Below are just a few decent sources:


3. Determine positions and job tasks that may reasonably be exposed to the hazard. Drivers and construction workers outside, servers at rooftop lounges, etc.

4. Determine the seriousness of the exposure and appropriate responses.

5. Educate them regarding the hazards present at your worksite or with their jobs and provide instruction and/or Personal Protective Equipment (PPE).

  • Maybe instruct the employees to go inside and don’t look at the darned Eclipse during the critical periods?
  • Provide appropriate glasses? This decision may be a philosophical decision rather than a safety decision. I don’t believe that you want employees working, driving, or operating equipment while wearing special glasses.
  • And if you do decide to provide special glasses, make sure that anything you provide as an employer is absolutely properly certified and approved. Reports are rife about inadequate or non-certified glasses making an appearance. From the August 18 Athens Banner Herald:

Some schools canceling classes or keeping pupils inside due to non-certified eclipse glasses

  • And while there are reportedly safe homemade/jury rigged ways to watch the Eclipse. Employers don’t need to recommend them.
  • Personally, the Pinprick Method or a homemade Camera Obscura sound pretty cool to me, but not as an employer recommendation.

6. NOTE: Filmmakers, news crews and others have a higher duty because their work may involve observing, studying or filming the event. Of course, these groups are better equipped in terms of equipment and special expertise, but should not become casual or sloppy. As an analogy, more experienced highly skilled construction workers fall to their deaths each year than inexperienced rookies. Superior knowledge and frequent exposure breeds contempt. Don’t assume that scientists and photographers do not need to be reminded to NOT take short cuts.

The Day of the Triffids.

When I was 12, I read John Wyndam’s 1951 groundbreaking sci-fi book, The Day of the Triffids, which scarred me for life with regard to Eclipses and other fun viewable solar displays. Don’t confuse the thoughtful sci-fi thriller book with the entertaining but not nearly as good 1962 movie.

In this chilling book, everyone who wakes up the day after watching an amazing solar display is – you guessed it – blind. This would be bad enough, but it seems that some years before, scientists discovered and began improving these nasty plants, which produced highly useful products, but also grew to about six to ten feet high, shuffled about, and had a deadly stinger with which they could strike prey from six or seven feet away. Oh. And they were nice to look at – this conversation was presumably overheard at a local botanical garden: “look dear at that colorful and beautiful death dealing flora from the bowels of hell! Can we get one for our garden so that baby Floyd can play in its colorful shade? Lowes has them on sale!”

So, pretty soon, acres were devoted to cultivation of Triffids or to charming city parks and gardens. Stingers were regularly trimmed off and the wondering plants were chained to steel spikes driven into the ground. What could possibly go wrong! Yep; nothing accept a worldwide instantaneous plague of blindness, thus guaranteeing that the Triffids get free, grow back their stingers and become the apex predators. Since they are plants, reproduction is easy and apparently the critters had decidedly crappy attitudes once they formed large freely roaming murderous hordes.

I may overcome my irrational fear of solar displays and enjoy tomorrow’s display … or I may hide in the basement huddled with firearms, MREs and cans of Roundup. We’ll see.




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President Trump, Tweeting, Safety, Harassment, Judgement and Will.

Trump, Tweeting, Safety, Harassment, Judgement and Will.

The President’s Tweeting dominated our discussions throughout June, with many people asking why does he Tweet? Was it a crafted strategy? A reasonable response to a biased media? A lack of Judgment? Emotional Outbursts?

While the media has not handled this Administration well, I do not believe that the President’s Tweeting has advanced his agenda, and has in fact further coarsened politics. Only a modest percentage of supporters seem to like his tweeting approach. As a regular Tweeter, I curse the difficulty of making nuanced comments in only 140 characters, and therefore I think that most subjects handled by the Leader of Free World cannot be addressed in one sentence.

If this Tweeting is a result of poor judgment, we see similar actions every day in the work world. Why do executives and laborers alike make often stunningly bad decisions?

Why do ALL of us make bad decisions and wrestle with self-discipline? January Resolutions are a sick source of humor. Unfulfilled to-do lists haunt us. Even the Apostle Paul conceded problems with making the right decisions, albeit from a spiritual standpoint:

I do not understand what I do. For what I want to do I do not do, but what I hate I do.

Romans 7:15 (NIV)

The question of why do we make bad decisions is not an academic subject to me. I’ve handled over 560 workplace death cases and catastrophes, many of which involved often inexplicable bad employee decisions.

Despite years of public litigation and employer training, we continue to see powerful executives commit colossal blunders involving female employees. Most of these incidents involved people making bad decisions … or to use a term from another time, not exercising their Will.

First we had the Fox Roger Ailes controversy, and then Bill O’Reilly was fired from Fox News amid troubling allegations of recurrent sexual harassment. Then, while processing these seismic developments at a major media outlet, we see a major shakeup at pioneering Uber after an internal investigation involving their workplace culture.

Although it received less press, I saw an article the other day about someone hanging a noose in the workplace as a supposed “joke” with African American coworkers. There is no more explosive action in the workplace. I’ve written on this topic before.

One is tempted to exclaim, are we making any progress in workplace culture?

To me, an equally imperative inquiry is why do these successful, often innovative people make such horrendous bad decisions? 

Even more importantly, why do normal people remove a guard on an operating machine, not tie-off, or cut corners in day-to-day ethical decisions?

Enough questions. Let’s talk over the next few posts about why normal people make poor decisions that translate into workplace fatalities, harassment claims, toxic workplaces or embarrassing Tweets and Facebook posts.

He’s an Idiot is not an Adequate Explanation for Bad Decisions.

I’ve written about validated studies showing a correlation between bad decision-making and fatigue, lack of sleep, and low sugar. See also Part II.

Let’s talk about the effects of stress, mental exhaustion and a corresponding lack of will or “self-regulation.”

Is the Issue a Problem of Willpower?

I have been impressed by the book, Willpower: Rediscovering the Greatest Human Strength, by Roy F. Baumeister, Professor of Psychology, Florida State University and NYT Journalist John Tierney.

From the NYT book review:

Together with intelligence, self-control turns out to be the best predictor of a successful and satisfying life. But Baumeister and Tierney aren’t endorsing a return to a preachy puritanism in which people are enjoined to resist temptation by sheer force of will and condemned as morally irresolute when they fail. The “will” in willpower is not some mysterious “free will,” a ghost in the machine that can do as it pleases, but a part of the machine itself. Willpower consists of circuitry in the brain that runs on glucose, has a limited capacity and operates by rules that scientists can reverse-engineer — and, crucially, that can find work-arounds for its own shortcomings.

I found Willpower to be far more than another self-help book. This book addresses many of the problems being played out in our news. From the article, The Power of Self Control (Baumeister):

The practical significance [of Willpower] is enormous. Most of the problems that plague modern individuals in our society — addiction, overeating, crime, domestic violence, sexually transmitted diseases, prejudice, debt, unwanted pregnancy, educational failure, underperformance at school and work, lack of savings, failure to exercise — have some degree of self-control failure as a central aspect.

I was especially intrigued by the discussions of how our will is depleted, which are also discussed in the above article:

Can you walk us through a typical example of willpower depletion?

A dieter may easily avoid a doughnut for breakfast, but after a long day of making difficult decisions at work, he has a much harder time resisting that piece of cake for dessert.

Another example might be losing your temper. Normally, you refrain from responding negatively to unpleasant things your romantic partner says. But if one day you’re especially depleted — maybe you’re trying to meet a stressful work deadline — and the person says precisely the wrong thing, you erupt and say the words you would have stifled if your self-control strength was at full capacity. What do you call this process?

My collaborators and I use the term “ego depletion” to refer to the state of depleted willpower.

And don’t lose hope, willpower, like muscle strength, can be recovered and increased:

Self-control resembles a muscle in more ways than one. Not only does it show fatigue, in the sense that it seems to lose power right after being used, it also gets stronger after exercise. (The fatigue effect is immediate; the strengthening is delayed, just like with muscular exercise.)

Baumeister’s article, Self-Control, the Moral Muscle.

Read the linked articles and we’ll discuss the role of Willpower and ego depletion in employment law and safety challenges in our next post.






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Ft. Lauderdale: Are Employers Acting on What They Learn from Mass Shootings?


After every public shooting, we discuss how to prevent and better respond to the next active shooter, but each subsequent shooting event suggests we are not acting upon knowledge gained.

Wrestling with Mental Health and Gun Possession

On a policy level, if this shooter does turn out to be acting based on mental illness, we must consider steps to limit the possession of guns by individuals suffering from mental illness. I am a gun owner and I am very protective of individual privacy rights, but many of the mass shooters were known to suffer meaningful and often violent mental health issues, and yet were permitted to continue to own guns. California implemented a law last year which created a process for concerned family members or other individuals to approach a judge to obtain a temporary order until further investigation was carried out. Other states have somewhat similar laws, but only law enforcement officials can implement the process.

There are obviously risks in developing such legal processes. I’ve written a great deal about the need to eliminate the stigma in the workplace for individuals suffering from depression and other mental and emotional issues. Few of these individuals present a threat to others, and are suffering from an illness, which should be treated with no more stigma than any other health challenge. Employers should encourage them to seek help.

There are other concerns. Some individuals might use such laws as a way to hurt someone’s reputation. Angry individuals in marital and custody disputes might misuse such laws as a club. Some might view any interest in firearms or hunting to suggest a mental illness. But we deal with balancing issues in legislation every day

Safety at Work/Safety at Home!

Many employers are devising on programs to encourage workers to act safely at home. Bad judgment doesn’t start or stop at work, and we can only create a true safety mentality by making it a part of life. Employers are working to inculcate safe habits and activities ranging from driving to home repairs to hanging Christmas lights. Train employees to avoid violence away from work, including while travelling. Maybe even provide basic self-defense learning opportunities. EHS Today Article.

Teach and Reteach Employees to Continuously Practice “Situational Awareness.”

Look for ways to teach employees to be situationally aware at work, and then expand to outside scenarios. I am sure that once the full details of the Ft. Lauderdale shooting are released, we will learn that many of the victims lay on the floor or stood still in shock, which made them easy targets for a methodical shooter. Uninformed reflex action is often wrong.

My past experience in Full Contact fighting, especially with younger quicker opponents, made me very aware of my environment, and that alertness has assisted me in driving on Atlanta interstates and in avoiding unsafe situations.

One will not develop situational awareness solely by watching a Run Hide Fight video or an attending an occasional active shooter class. Investigate simple exercises and training routines which might remind individuals of how to continuously evaluate everyday situations and remain alert. Such a mindset easily transfers over to workplace behavior. Expand you training on “Distracted Drivers,” Avoiding Struck-bys, and PIT training. And if you are in healthcare, especially home health occupations, provide detailed training on how to be sensitive to risk. Have run … use VR and online gaming!

I’ve Linked to a post by Active Response Training as an example of down in the dirt tips for surviving an airport shooter: How Not to Get Killed in an Airport.  Interesting Ted Talk on staying Calm When Stressed.

Include Basic Trauma Instruction and Materials in Your First Aid Efforts.

We will probably soon see FEMA, DHS, and other Federal groups endorse enhanced first aid training and materials for trauma response. About 80% of mass shooting victims would’ve had a chance of surviving had someone on site had basic training in trauma response and available materials.

One can obtain a basic trauma kit for about $50 to $200 at an REI or online at multiple sites. Here’s one at Amazon for $54, although it might not be adequate for your needs. I keep a basic trauma pack in my vehicle first aid kit. Every employer should consider adding such a package to at least some of its first aid kits.

Please take the time to go to DHS’ Stop the Bleed site.

First Aid Training is an Opportunity, Not a Burden.

Instead of viewing first aid training as a burdensome obligation, view first aid training is a meaningful opportunity to limit the severity of workplace injuries, as well as create more of a sense of community and team. OSHA interprets its First Aid standard 1910.151 to require an employer to provide first aid training if emergency response will take more than three to four minutes depending on the industry setting.

Most employers provide some First Aid training. Why not offer to at least some interested employees, more than the usual first aid and CPR course? A wide range of training is available … and useful.

  • When one goes on the two week Boy Scout Philmont high adventure backpacking trip, at least one member of the group must undergo the full one or two weekend Wilderness First Aid training. The Wilderness First Aid training is premised on the fact that the group may be unable to get to a medical provider for several days. I valued my course experience and have used it in many context.

There are obviously many other steps employer can take and we regularly write about developing a full program to respond to workplace violence, including active shooters, along with other emergencies. As an example, have you recently looked at your Employee Action Plan (EAP) and related training and procedures? Recent FP Post on Workplace Violence planning.

Learn from each incident … and act.



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A New Series: Practical Advice for 2017: One – Thinking, Listening, Showing Respect and Reading (plus recommended books).

A New Series: Practical Advice for 2017

With the exception of Immigration enforcement, I doubt that we will see as vigorous an increase in new employment law requirements and enforcement under the Trump Administration as under President Obama’s tenure. Therefore, I’m returning to the practical day to day subjects which continue to generate employer legal and safety claims or to increase profitability and success … depending on whether one in fact utilizes not-so-common sense.

Most of this series will focus on specific employment law and safety strategies, but I’ll exercise the author’s right to ramble a bit and also deal with more philosophical or plain damned simple ideas as well. It’s that wonderful quiet week between Christmas and New Year and today’s post will hopefully be fun to read.

I do not like some of the self-help books or motivational quotations, but I do enjoy classic preferably snarky quotations, so here are a few to set the tone.

The Importance of Thinking.

The most decisive actions of our life – I mean those that are most likely to decide the whole course of our future – are, more often than not, unconsidered. Andre’ Gide.

Which leads me to several points, such as the need to Think and be thoughtful, before acting and as a daily practice.

It is human nature to think wisely and (still) act in an absurd fashion. Anatole France.

Embrace Learning.

Preferably before you screw up, but certainly learn from your mistakes. Even better, learn from others’ mistakes, which is why I write about safety, labor and employment law screw ups and successes.

The road of excess leads to the palace of wisdom. William Blake.

Try again. Fail again. Fail better. Samuel Beckett.

Practice Listening.

Genuinely listening is a problem for me and for many other attorneys. We are so eagerly planning our own no doubt profound comment that we don’t learn and listen to the other person’s words. Moreover, we waste opportunities to learn from normal people in our everyday life. My Will Rogers-like Uncle John Alsup lived by the belief that every person, no matter how humble or uneducated, has something to teach you.

When you know how to listen, everyone is the guru. Ram Dass.

Everyone you will ever meet knows something you don’t. Bill Nye, the Science Guy.

When people talk, listen completely. Don’t be thinking what you’re going to say. Most people never listen. Ernest Hemingway.

Showing Respect.

Which leads to Respect … a virtue in scant display during the last year’s political battles. Many hot comments are made to impress oneself and one’s likeminded friends and have no persuasive value whatsoever. Likewise, both parties learned what happens when you appear to look down upon others and their beliefs.

The Importance of Reading.

I’ll close with one of my favorite practical beliefs – that one should continuously Read. And not solely business, industry and trade-related books. In fact, I believe that one should purposely read good fiction and non-fiction works.

For me, I love history and narrative non-fiction and periodically pick different periods of history, depending in part upon whether a new book has been released where the author made the history readable. I am not disciplined enough to force myself to read very many dry tomes, no matter how important the content. I regularly track Best Book Lists, including British periodicals such as the Guardian and Telegraph. I also enjoy lists of books read by successful leaders and business people, especially when the lists are not limited to business texts. Best of all, I am blessed with adult children who routinely turn me on to great fiction, often before a book becomes a best seller. As an example, my son got me to read The Martian long before the book became famous and was targeted for a darned good movie.

While it is very much not the same as “reading,” much of my recent book consumption has been by listening to Audible recorded books while endlessly driving, even around Atlanta, walking and hiking and while doing mindless tasks such as cleaning my office or washing dishes. I often purchase a hard copy or an electronic version and alternate listening and reading. I also partake of the “Great Courses” through Audible.

I’ve noticed that even reading good fiction subconsciously affects my writing style and improves my vocabulary. Unfortunately I may use words that I’ve read but not heard, and sometimes pronounce new terms in a way which causes my overly intelligent and wonderfully snarky son to collapse in laughter.

Below are some recent lists of books from which to choose.



And here are a few of my recommendations (reflects my own reads and does not reflect every worthy genre).

  • “You will not read a more important book about America this year.”—The Economist
  • “A riveting book.”—The Wall Street Journal
  • “Essential reading.”—David Brooks, New York Times
  • Elon Musk: Tesla, SpaceX, and the Quest for a Fantastic Future, Ashlee Vance (My favorite Bio for 2015-2016).



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Non Union Employers Continue to Get Busted by the NLRB for Seemingly Reasonable Policies


Thanks to my partner and friend Steve Bernstein for much of the content for this post. The bulk of the NLRB Unfair Labor Practice Charges I’m seeing against Employee Handbooks and employer rules are against non-union employers.  The Board has unreasonably expanded its concept of “concerted protected activity” to attack any policy which might be twisted and construed to discourage employees from talking about and raising issues about wages, benefits and terms and conditions of employment.  The NLRB dismisses concerns about civility in the workplace or many concerns about confidentiality.  If you have not recently carefully scrutinized your Employee Handbook and policies, I’d bet you lunch that the Board would find a number of seemingly reasonable policies to be unlawful.

The Board can order non-complying employers to take steps such as posting an employee notice describing workers’ rights, or perhaps rescinding handbook policies that run afoul of the law. Or, taking it one step further, it could force you to reinstate any employees you have discharged for violating policies it finds out of bounds.

Set forth below are just a few areas in which the agency can impact your business, along with some action items to help you steer clear of potential legal exposure:

  • Social Media Policies – The NLRB will closely scrutinize policies which broadly restrict employee rights to air public grievances concerning wages and other working conditions on Facebook, Twitter, and elsewhere (read more here).
  • Off-Duty Access Restrictions – Policies that give management the broad discretion to determine the circumstances in which employees may be disciplined for violating “no loitering” policies will likely be invalidated (read more here).
  • Class Action Waivers – Despite multiple court decisions to the contrary, the agency continues to enforce its doctrine prohibiting class action waivers contained in binding arbitration agreements, calling them an encroachment on concerted protected activity (read more here).
  • Restricting Discussion of Internal Investigations – The NLRB has issued a line of decisions invalidating policies that impose blanket restrictions on an employee’s right to discuss the status of complaints under internal investigation (read more here).
  • Solicitation and Distribution Policies – The agency is carefully scrutinizing rules that ban solicitation for “commercial purposes,” or otherwise extend beyond working areas and working time (read more here).
  • Electronic Communications – Through recent decisions such as Purple Communications, the NLRB is now invalidating policies that purport to restrict the use of electronic communications over business-owned systems during non-working time (read more here).
  • At-Will Policy Statements – Recent rulings suggest that the Board will now invalidate any at-will statements that state or imply that such status may not be modified by anyone under any circumstances (read more here).
  • Rules Requiring “Courteous” or “Respectful” Behavior – Policies broadly requiring such conduct, or prohibiting “disparaging” or other conduct that “impedes harmonious relationships,” are generally deemed unlawful (read more here).
  • Outright Bans on Workplace Photography or Recording – Through a pair of recent Board rulings, you are generally precluded from imposing outright bans on such conduct except under extremely narrow circumstances (read more here).
  • Overly Broad Restrictions on Media Disclosures – The NLRB has made clear that unless confined to situations in which the employee purports to address the media on the employer’s behalf, such restrictions are overly broad (read more here).
  • Restrictions on Public Logo Displays – Remarkably, the agency has gone so far as to suggest that you may not impose outright bans on displaying a company logo, absent compelling business reasons (read more here).
  • Overly Broad Confidentiality Rules – Policies purporting to prohibit disclosure of employee salary information or related data pertaining to wages or benefits are increasingly being struck down as overly broad (read more here).
  • Mandatory Complaint Policies – Similarly, policies compelling employees to direct their grievances through internal resolution mechanisms are also being invalidated under the concerted protected activity doctrine (read more here).

I’m surprised that many employers continue with probably unlawful policies.  While the Board has made it near impossible to enforce some rules, we’ve devised approaches to address other areas.  It just takes some thought.  So, if you have not reviewed your policies and procedures in 2016, now is the time to do so. You should scrutinize them carefully for any language that broadly restricts group discussion or action, mandates advance management approval, or otherwise broadly proscribes “unprofessional” or “inappropriate” conduct. Especially be wary of “behavior” rules that are not placed in and ties to policies such as No Harassment, No Bullying, Workplace Violence and Customer Service.

Take steps to ensure that all general restrictions are accompanied by narrower terms defining the scope of improper conduct. Avoid ambiguity in favor of specific examples where possible, and consider adding a proper disclaimer.



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  1. Changes in Federal Enforcement
  2. OSHA may apply 82% penalty increases back to inspections begun in February
  3. State Laws and Bathroomgate
  4. A Major Change in Attitude towards Workplace Violence
  5. More and serious EEOC process changes
  6. Recent EEO Decisions where Employers Got it Right (or Wrong)
  7. Zika Will be Bigger Problem than Ebola
  8. Management and Self Help

We’ll get back to all short blurbs in the next volume.


Big changes in Federal law without new legislation … through Interpretations and Regulations.

In my 32 years of practice, I have never seen a busier lame duck period. The Administration is determined to change as many laws as possible before the clock runs. This Administration aggressively using interpretations, directives, changes in enforcement posture, and new regulations to change decades of precedent under the National Labor Relations Act, OSHA, and other Federal Regulatory schemes.

I’m not approving or criticizing the Administration’s new rules on corporate taxes and inversions, but as this April 7 Wall Street Journal Article explains, these rules are a good example of how the Administration is abusing the system to make laws which should normally go through a legislative or rulemaking process. See also an April 8 Wall Street Journal Article on more regulatory changes to come. What’s next? As we discussed in our last update, the Administration released the proposed Silica and persuader rules, as well as new NLRB interpretations. Lawsuits in at least six US Circuits have been filed to challenge the Silica rule and a number against the Persuader rules.

Action Point: Begin testing and determine if you are in compliance with current OSHA Silica levels.

 We expect to soon see the federal Wage Hour overtime changes, which will affect a huge number of employers.

 Action Point Analyze as your lower level management positions and determine the extent to which you may lose overtime exemption for positions as they are currently structured and paid. We’re glad many employers have started reviewing whether some employees genuinely are exempt from overtime, but as John Thompson points out in a recent post, be wary of complete reliance on the “Checklists” floating around.

 We also expect to soon see the release of OSHA’s new Electronic Recordkeeping Rule. Employers need to be aware that the requirements will for the first time define an “enterprise,” and the proposed broad definition would basically treat any entity which the employer owns 51% to be the same company for OSHA purposes, such as determining Repeat citations:

 One possible measure of ownership or control is the enterprise’s percentage of ownership of the establishment. In this case, the definition could be “for the purposes of this section, if an enterprise has an ownership share greater than 50% in an establishment, it is considered to have ownership or control of that establishment.” For example, if Corporation A owns a majority of the stock of subsidiary Corporation B, the establishments owned and operated by Corporation B would be considered part of the Corporation A enterprise.

 OSHA is also seeking to change the Court decision prohibiting OSHA from citing employers for recordkeeping errors more than six months old by new Rulemaking. Thought that one had gone away, didn’t you?

Consider also how OSHA is broadening the scope of some inspections under certain Emphasis Programs.


New Wrinkle on OSHA’s planned 82% Penalty Increase in August, 2016.

OSHA now says that it may apply those higher penalties to inspections commenced as far back as in February 2016 if the citations are issued after the penalty increase. See post on OSHA’s Enforcement page.


Lots of New State Laws.

Read my piece on minimum wage changes in the New York and California. New state minimum wages may occur in states such as Massachusetts and New Jersey. I’ve also been shocked at the attention given the now infamous North Carolina Bathroom Law. Our latest update on Bathroomgate explains that the NC changes do not much affect employers, although as I explained in a recent Wall Street Journal piece, the law did have a side effect of making it harder for NC plaintiffs to use NC state antidiscrimination law on race, sex and other protected classes. Despite the lack of clear Federal protections, since the EEOC’s 2015 Lusardi decision involving a Transgendered employee, the EEOC has made it clear that they will pursue LGBT actions. EEOC site. 

Action Point: Regardless of one’s views, one message is to refine anti-bullying efforts. I’m not very politically correct, but there’s nothing liberal about preventing targeted and relentless teasing and bullying. I’ve seen bullying cause far too many discrimination and hostile environment claims.

Also, in California:

The “New Supreme Court Case On Sitting During Work.”


“San Francisco’s New Paid Parental Leave Law”



A Major Change in Attitude towards Workplace Violence

We just completed the second of two Fisher & Phillips webinars including panelists and contributors who were active and former Department of Homeland Security, Secret Service, and other law enforcement professionals. We solicited questions and concerns from employers and used the panel discussions and preparation to develop a more effective practices to prevent and respond to workplace violence. (March 29 archived webinar part 1)

Although interest spikes after every mass shooting, employers have not done much more than update their written workplace violence policies. Most of these policies are simply statements in employee handbooks and include generalized provisions. Likewise, while many employers now show their employees the DHS “Run, Hide, Fight” video on how to respond to an active shooting, employers have not increased training or revised evacuation programs, emergency action plans or emergency response plans.

An attitude change is required. While it is still unlikely that your workplace will experience a mass shooting, the frequency of such events is rapidly increasing. Such events can destroy a business. Similarly, less serious instances of workplace violence occur hundreds of thousands of times per year.

Some of our conclusions are as follows:

  • No checklist will identify every employee prone to workplace violence or a mass shooting. The best approach is to encourage employees to raise concerns about coworkers. Postmortem reviews often show that coworkers were aware that something was not quite right with an employee or that an employee was going through domestic abuse or another situation which might introduce violence to the workplace.
  • Think you can spot the potential workplace shooter? Consider the following myths …

Myth 1: There is a profile of “the shooter…”

Fact: Shooters and non-lethal approachers do not fit one descriptive or demographic profile or even several descriptive or demographic profiles.

Myth 2: Workplace shooting is a product of mental illness or derangement.

Fact: Mental illness only rarely plays a key role in an assassination event.

Myth 3: The persons most likely to carry out threats are those who make direct threats.

Fact: Persons who carry out attacks often do not make threats; especially direct threats.

From US DOJ – Protective Intelligence and Threat Assessment Investigations (1998).

  • Encourage employees to tell management if they have obtained a restraining order against someone or if they are involved in a domestic abuse situation. Once the employer solicits this information, they also accept a duty to take some sort of reasonable action. However, the alternative may be to be featured in the next day’s news.
  • We must train supervisors to get serious about dealing with bullying and workplace rage and anger. It is better to deal with employees before their bad behavior festers. Moreover, bullied employees may claim that their mistreatment was based upon sex, national origin or other characteristic, and raise hostile environment claim.
  • Strengthen Workplace Violence, Workplace rage, No Harassment, No Bullying, and Complaint procedures.
  • Proactively deal with concerns about guns in the workplace. All of the safety professionals with whom we conferred do not support employees bring their guns to work. Law enforcement professionals are worry about employees who have not received law enforcement training using hand guns in the workplace. Similarly, law enforcement officials worry about shooting or being shot by an employee who has a gun when the officers respond to a crime situation.

Action Point: Employers will have to evaluate state laws dealing with employer rights to carry guns in the workplace. Different standards may apply to guns retained in employees’ vehicles in parking lots.

  • An attitude change is required in evaluating the hard security of the workplace. Many businesses object to the thought of blocking access from the lobby or placing receptionists behind a high counter or Lexar window. However, employees need to engage in a realistic risk analysis and determine appropriate steps.

The above points are just some of the lessons from this ongoing process, and even these recommendations should be applied and on a case-by-case basis.

We strongly encourage employers to contact their F & P counsel about revising various policies and obtaining resources in evaluating their unique security issues.

Relevant Links

Suicide Prevention (ABA article focusing on lawyers) – depressed employees present more of a danger to themselves than to others, but many of the same steps intended to prevent workplace violence may also prevent a suicide.


EEOC Developments

Employers have become accustom to the periodic unfounded EEOC charges and may not treat them as seriously as a retaliation claim or litigation. However, the EEOC continues to change its procedures in ways which makes it more burdensome for employers to respond and may require employers to obtain more legal guidance.

This week a number of EEOC directors told employers that they had been instructed not to grant extensions on responses to charges and the only potential exception was where the respondent had elected mediation, but the EEOC had been unable to contact the Charging Party. Some of these directors have commented that even then, the maximum extension would be only two weeks. One assumes that such an approach is intended to force employers to more seriously consider mediation. We’ll see if it indeed becomes more difficult to obtain extensions.

OSHA Whistleblower investigators have long provided Complainants with the Employer’s Position Statement and the EEOC now provides the Statement of Position, along with exhibits and data, to the Charging Party.

Action Points: Employers will have to evaluate whether to provide certain information in the initial Statement of Position. Most importantly, employers must take steps to ensure that the Position Statement is accurate. If the HR Director relies upon a supervisor’s report of what a coworker said, there is a chance that the employer will unintentionally provide inaccurate facts, which make the employer look dishonest. Employers need to think very carefully whether to attach affidavits or sworn statements to the Position Statement, and how to protect witnesses and confidential business materials.

The EEOC is expanding its subpoena power. A recent Seventh Circuit Court Decision enforced a subpoena to an employer accused of age-discrimination, which required the employer to provide names of all clients at 62 offices, as well as all employees placed with those clients. The employer objected and pointed out that the subpoena went far beyond the scope of the charge, would involve over 22,000 clients, and could damage the employer’s relationship with those clients. The court held that the EEOC could “investigate merely on suspicion that the laws is being violated, or even just because it wants assurance that it is not.”   The Court even opine that the EEOC could “investigate on suspicion that the ADEA is being violated, without the necessity of bringing a charge.”


EEO and other Employer Pitfalls (and Successes)

Scruggs v. Pulaski City (8th Cir. 4/1/16) An Arkansas employer won summary judgment on a juvenile detention officer’s discrimination and retaliation claims based on a 25-pound lifting restriction. The Court held that the ADA doesn’t require employer to disregard work restrictions imposed by the employee’s treating physician in favor of opinion of different doctor potentially lifting those restrictions. The Court also held that unreasonable accommodation requests aren’t “protected activity” for purposes of anti-retaliation law.

Agee v. Mercedes-Benz International (11th Cir. 3/30/16). An automaker terminated an employee who was medically restricted from working more than 40 hours per week. The court recognized that the ability to work mandatory overtime can be an essential job function for ADA purposes. This case was VERY fact-specific and a Court could easily go the other way. Mercedes contended that the ability to work mandatory overtime as part of a flexible schedule was an essential function of all assembly plant jobs. The court agreed, based on evidence that the job description required “flexibility in moving between different job assignments and work schedules.” The employee also completed an application stating that “business needs” may require overtime. The Employee Handbook set an expectation for employees “to work a reasonable amount of overtime as required for production schedules and as a condition of initial and continued employment.” Perhaps most importantly, Mercedes introduced evidence that plant employees worked an average of three hours of overtime per week, or 156 hours per year. It’s important to note that many employers in other business settings would not have been able to show the undue hardship of accommodating the employee by excusing her from overtime.

Action Point: The employers had accurate and effective job descriptions, could defend their choice of essential functions and went through the required individualized interactive process with the employee.

Walker v. NF Chipola, LLC (N.D. Fla 3/28/16). The employer made an all too common mistake when it assumed that because FMLA only required 12 weeks of leave, the employer had no duty to provide further leave once the FMLA leave was exhausted. The FMLA does not replace or preempt the ADA and the employer still had to determine if additional leave constituted an undue hardship under the ADA. Rarely is up to six or even 12 months of unpaid leave with no guarantee of return found to be an undue hardship under the ADA.

 Deets v. MTA (7th Cir. 2016). Watch what you say during layoffs. This linked Article discusses a recent case in which the 7th Circuit allowed a white construction worker to take his race discrimination claim to trial. When the employee asked why he was being laid off, the project superintendent told him that his “minority numbers” were not right.” The bridge project received federal assistance and sought to meet had to meet a federally mandated goal for participation by minorities (14.7%) and women (6.9%).


Zika Will Be a Bigger Problem than EBOLA

Based on the U.S. success in containing Ebola last year, we have reaon to believe that should this terrifying disease reappear, the U.S. will minimize its domestic effects. Moreover research may even come up with better treatments or vaccines. Thus, I do not blame President Obama for recently shifting money from Ebola prevention and response to Zika. Ideally, if government were not so bloated, inefficient and driven by entitlement spending, there would be money for both, but we live in a flawed political world.

In its recent situation report on the virus, the World Health Organization concluded that, “It is now clear that the virus causes microcephaly,” which is a condition that causes babies to be born with abnormally small heads and underdeveloped brains. Zika has the potential to affect more American citizens than Ebola and thus far, there is no vaccine or a surefire way to prevent the industrious Aedes aegypti mousquitos heading our way.

On the positive side, many national health experts do not expect some sort of epidemic, but do expect “local clusters of the disease.” According to AP,

WASHINGTON (AP) – A top public health official says there’s been no local transmission of the Zika (ZEE’-kuh) virus in the United States, so any talk about women in the country delaying pregnancy “is not even an issue for discussion at this point.”

Dr. Anthony Fauci (FOW’-chee) of the National Institutes of Health also says it’s “very likely” the U.S. could see “local transmitted cases as we get into the robust mosquito season” this summer.

He says if there’s a “local outbreak,” it’s up to health officials to work to contain it.

For now, he says, women in the U.S. who are getting pregnant “should not be worried about anything regarding pregnancy” – but steer clear of countries where there are outbreaks.

But truth is that we do not have that many answers, including the extent of the risk of sexual transmission or even when or how much we’ll see transmission in the U.S..

Let’s not overeact, but employers would be wise to take the following practical and inexpensive steps:

  1. Recognize that the number of people affected is still relatively small but the effects are terrible.
  2. Start tracking developments NOW before a crisis occurs, which would be different than our usual responses to Pandemics and threatening diseases.
  3. Evaluate your workplaces for exposure to mousquitos, develop responses and begin training.
  4. Mousquito repellant, certain types of clothes and long sleeves may become PPE. Despite detesting mousquitos, many Americans are haphazard about their use of mousquito repellant and changing their attire.
  5. When I have travelled in parts of Africa where malaria is common, I have religiously taken measures to avoid mousquito bites. There will come a time when we will have to create that same sense of urgency in American workers about mousquitos. And let’s not forget the delightful West Nile Virus, which has already bedeviled certain states and has already received a fair amount of OSHA attention.
  6. Check these OSHA West Nile Guidelines going back to 2012.       Here’ a sample of simple OSHA recommendations from its west Nile Quick Card:

 Preventing Mosquito Exposure

Reduce or eliminate mosquito breeding grounds (i.e., sources of stagnant or standing water).

Cover as much skin as possible by wearing long-sleeved shirts, long pants and socks when possible.

Avoid use of perfumes and colognes when working outdoors.

Use an insect repellent containing DEET or Picaridin on skin that is not covered by clothing.

Choose a repellent that provides protection for the amount of time that you will be exposed. The more DEET or Picaridin a repellent contains, the longer time it can protect you.

Spray insect repellent on the outside of your clothing (mosquitoes can bite through thin clothing).

Do NOT spray insect repellent on skin that is under clothing.

Do NOT spray aerosol or pump products in enclosed areas or directly on your face. Do not allow insect repellent to contact your eyes or mouth. Do not use repellents on cuts, wounds or irritated skin.

After working, use soap and water to wash skin and clothing that has been treated with insect repellent.

Be extra vigilant from dusk to dawn when mosquitoes are most active.

Educate employees, including those employees traveling overseas.

Additional Relevant Information

“Effect of El Niño is for a hotter & wetter South East The makings of a Zika perfect storm in the Northern hemisphere.” Dr. Neil Bodie


New survey on American attitudes toward Zika virus finds limited awareness or concern http://scienmag.com/?p=1463041 


Management and Self Help

Solid analysis of who defines culture in a workplace http://www.benefitspro.com/2016/03/25/who-creates-a-companys-culture?ref=hp-news&slreturn=1459178880

$63B in productivity loss: “Is sleep the next frontier of workplace wellness?” (by @mayereditor via @EBNMagazine) http://bit.ly/1XMZzoJ




Four Important Ways that Technology is Affecting HR.

15 Websites that Will Heighten Your Emotional Intelligence.

Howard 4/18/16



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What Do YOU Think About a $15 Minimum Wage?

At this point everyone is familiar with the union supported “Fight for 15” Campaigns focused principally on fast food restaurants. The related union organizing efforts have shown little fruit, but the related effort to obtain State legislation has been more successful. Last week, California and New York acted to pass Minimum Wage Laws requiring $15 per hours. Read now about the landmark California law. (Detailed Analysis).

According to an April 2 Wall Street Journal Article, other states may follow:

Illinois, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island and Washington are among the states with active “Fight for $15” efforts, and even economic experts who oppose the increased rate see it gaining momentum.

Today, Politico’s wonderful “Morning Shift” reported that Boston Mayor Marty Walsh and the Laborers’ Union want Massachusetts to follow California’s lead.

A few observations ….

  • A forced higher Minimum wage seems preferable to using taxes to redistribute income because the wasteful middleman of government is cut out.
  • I understand the principle behind the $15 Minimum Wage. It’s a form of social safety net. No one can argue with the desirability of everyone earning at least that much, except that not every job is worth $15 an hour.
  • One of the reason that some jobs pay so little is that the work requires limited skills and talents and may require little intellectual effort, hard work or ability to handle stress. Admittedly many low wage jobs are tough, but for whatever the reason, the market does not more highly value them.
  • Should we be focusing more on jobs that we all agree deserve more compensation such as teachers, nurses and law enforcement officers? Will the $15 minimum wage drive up pay rates or just narrow the gap?
  • My biggest concern is that mandating $15 for jobs that the market does not value may distract from the need to get people into jobs that pay more and give more dignity because they require more credentials. Do we want to make it desirable to bus tables at a fast food restaurant as a career?
  • The UW Seattle Minimum Wage Study, which is supportive of Seattle’s efforts, has pointed out that $15 may be appropriate in a high cost city such as Seattle because it has a lot of higher paying jobs, but what about rural areas or Midwestern cities who have been savaged by the loss of heavy industry? In other words, $15 may not fit every area. The multiyear UW Study will generate useful analysis of the results of the Seattle Minimum Wage effort.
  • Some economists believe that jobs will be lost as employers hire less employees. Restaurant executives have expressed a number of concerns. The Washington Post argues that it will be good to lose some of those jobs.
  • Corporations may adjust, but what about small businesses? I’m already troubled by the consolidation in American industry.

The $15 Minimum Wage may be worth the negative consequences, but there will be consequences and some may be negative. We’ll have several test states.

WARNING: The effects of a higher state Minimum Wage may be broader than you realize. To quote from our F & P Alert:

Employers in California should act quickly and seek legal counsel to make sure that all elements of their compensation agreements will be adjusted to comport with the applicable minimum wage levels. This includes meal and lodging deductions, commissioned salesperson exemption pay levels and related minimum draws, minimum pay for employees using their hand tools, minimum salary requirements, and a whole host of other considerations.

“Replace them with Robots?”

The effort to raise minimum wage has accelerated consideration of automating jobs in the service sector, which may be a good thing, but will have consequences. Another article.

The CEO of the Carl’s Jr. has become a thought leader in driving an accelerated consideration of automating many aspects of food service. Article. Remember the Automats of the 30s and 40s? Another article.  Article about robots and automation in Chinese restaurants.

One senses that we begin to see more serious efforts to automate many jobs, which may be good. How will automation and the growth of more educated workers in India, China and even Africa affect U.S. businesses and which jobs will be most desirable in the future?

Better put these questions on your long and mid-term strategic planning list.


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