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.

Howard

 

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FAST AND FURIOUS SAFETY AND HR UPDATE VOLUME II

 

  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.”

http://www.laborlawyers.com/california-supreme-court-rules-that-employees-may-have-right-to-sit-during-working-hour

“San Francisco’s New Paid Parental Leave Law”

http://www.laborlawyers.com/san-francisco-will-require-employers-to-provide-paid-parental-leave-faqs-for-employers

 

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

http://www.politico.com/story/2016/04/white-house-rips-congress-over-zika-funding-221646

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

http://www.businessinsider.com/4-personality-types-that-make-successful-entrepreneurs-2016-3

https://www.linkedin.com/pulse/great-tricks-reading-peoples-body-language-dr-travis-bradberry

https://www.linkedin.com/pulse/why-good-people-do-bad-things-dr-travis-bradberry

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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April is Distracted Driving Awareness Month — Nationalsafety’s Weblog

From the National Safety Council website… “Thousands have died in car crashes involving cell phone use. New technology allows us to make phone calls, dictate texts or emails and update social media while driving – all actions that are proven to increase crash risk. The National Safety Council observes April as Distracted Driving Awareness Month to […]

via April is Distracted Driving Awareness Month — Nationalsafety’s Weblog

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A Fast and Furious Safety, Labor and HR Update 1 (3/26/16)

A New Approach to My Posts

Last week I was honored to be named a Top Author in J.D. Supra Readers’ Choice Awards. I write a great deal when I should probably be billing, but you guys seem to enjoy my stuff, so thanks! However, I often read an article or have an experience which merits discussion, but I don’t have the time to prepare my preferred detailed analysis.

So, this Post is my first effort to alert you to a number of important issues and link you to pertinent articles without as much discussion. Hope you find these observations useful in your business.

Howard

A Flurry of D.C. Activity

We’ve told you that this Administration is not going out quietly. They will work until the midnight hour of their last day in office to change the law by regulation, decision, directive or fiat. On Wednesday, March 23, the US DOL released the long-awaited “Persuader Rule.” On Thursday, Secretary Perez announced the even longer awaited Silica Rule. On March 22, the NLRB issued its Memorandum on “Mandatory Submissions to the Division of Advice,” which shows the NLRB’s aggressive priorities. We assume that we will soon see the release of OSHA’s Electronic Reporting Rule.

US DOL Persuader Rule

So what you may ask is the “Persuader Rule.” See our recent Alert for more detail. Many commentators view this rule as an effort to make it more difficult for employers to obtain legal guidance in responding to a union organizing effort. However, assuming that the proposed Rule survives the inevitable legal challenge, management labor law firms will comply with the regulation and still continue to provide needed legal counsel. The current NLRB has reversed 40 years of precedent and in this brave new world, employers need legal guidance on bargaining units, handling routine discipline and discharges during election campaigns, and avoiding promising benefits or wrongly changing existing terms and conditions of work.

ACTION POINT: Recognize the confusing changes in NLRB enforcement and seek advice to avoid pitfalls. An employer cannot respond to a Union Representation Petition in the same fashion as it did under past Administrations. Trust your attorneys to obey whatever eventually emerges as the Persuader Rule. It’s manageable.

Silica Rule

DOL Secretary Perez announced OSHA’s new Silica Rule on Thursday. This is the second time that Secretary Perez or OSHA Head Dr. Michaels used a widely broadcast NPR show or series to gain maximum coverage, which is a great way to gain the maximum public impact. Dr. Michaels previously used NPR to announce the 2015 Hospital Ergonomics and Workplace Violence Effort.Dr. Michaels views the Silica Rule as his legacy achievement now that the I2P2 Rule is seemingly DOA. The Agency’s proposed rule would set a new permissible exposure limit (PEL) for respirable crystalline silica of 50 micrograms per cubic meter of air calculated as an eight-hour time-weighted average (TWA), down from 100 micrograms for general industry and 250 micrograms for construction and shipyards.Construction employers will struggle, but we worry that the new Standard will especially harm foundries and primary metals. There are also reputable studies showing that if the current OSHA Standards were effectively enforced, almost all of the employees expected to benefit from the new standard might be equally protected. The AGC of America’s Analysis is indicative of industry groups’ valid concerns. See also the American Foundry Society page. Silica must be addressed but there are many concerns about OSHA’s approach.

ACTION POINT: Carefully review your compliance with the existing OSHA Silica Standard cut-offs and determine where the new much lower PEL’s will affect your operations and how to comply.

EEOC Issues

I am always shocked when I see a discrimination case involving a “noose.” There is nothing more inflammatory than using a noose as a joke. A recent 9th Circuit case reminds us that employees remain capable of doing such foolish things. The important point is that some moron did not idly walk in one day and decide to place a noose as a misguided joke. Teasing and banter probably started out innocently and grew into a monster. If teasing and horseplay are allowed to get out of hand, these actions can mutate into bullying or harassment.

ACTION POINT: Train supervisors to recognize and control bad behavior at early stages before it results in harassment or discrimination claims or workplace violence.

Another case shows the importance of your written job description. An Oregon ADA-case has been allowed to proceed where a Sales Rep claimed that driving was not an essential function in the job and that if it is essential, providing a driver is a reasonable accommodation.

Action Point: Review those job descriptions and make sure that all essential functions are covered.

Wage-Hour

You have no doubt seen the articles about this week’s Supreme Court decision allowing statistical analysis to be used in a “donning and duffing” wage-hour class action instead of requiring individualized evidentiary analysis. This decision makes it much easier for plaintiff employees to pursue class actions. Attorneys are still debating the extent to which this is a fact-specific ruling.

ACTION POINT: Maintain accurate timekeeping records to make individual, class and collective actions more difficult to pursue.

Workplace ViolenceEmployers are wrestling with an expanding list of questions:

  • Should I respond to reference checks on former employees with violent histories?
  • Are there settings where we should allow employees to bring firearms on site?
  • Should we ask employees to tell us when they are involved in domestic abuse situations and/or seek a restraining order?
  • What is our “duty” to employees and their coworkers with regard to outside threats?
  • How do we handle employees going alone to customer jobsites or homes?
  • How can we recognize signs of potential violent behavior?
  • What’s our duty of accommodation to people with mental or emotional issues who display violent or antisocial behavior?

We are hosting two webinars on March 29 and April 14, where we will discuss these issues with several current and former security or law enforcement advisors. We’ll start with the list on March 29 and continue on April 14

Drones

Construction, mining, agriculture, entertainment, utilities and other types of employers are using (or want to use) drones. As many as 2.7 million commercial users are predicted by 2020. Groups such as members of the National Association of Tower Erectors (NATE) are effectively using drones on a wide scale. However, the FAA has not yet provided official guidance for commercial use.Much of industry is awaiting FAA guidance. Currently one needs, among other things, an exemption to Section 333 of the FAA’s Modernization Reform Act of 2012. It is expected that the FAA will not require a full pilot’s license but employers and lawyers will still wrestle over the definitions of adequate training and procedures.

Chris Gibson of Sentera recently spoke at the Carolinas AGC HR and Safety Conference about how they train their professional operators or customer-employer operators. Sentera also works with Boeing on assembling and modifying drones for commercial use and is an impressive organization. Drones are surprisingly simple to operate, but once the FAA issues guidance, employers will be expected to determine and follow industry standards, and companies like Sentera, provide examples of the training and procedures that they deem necessary. If you use drones, make sure that you can show that you are following industry best practices.This week’s Construction Today includes a detailed article by Georgia Tech Professor Dr. Javier Irizarry, P.E., CGP, Professor of Building Construction and Director, CONNECTech Lab. Things to Consider B4UFLY a Drone on a Jobsite.

Examples of Superior Safety and Building Ideas

The winners of the AGC-Willis Safety Awards were announced at the AGC National Convention this month. We have linked to the Lists of the Winner’s Best Practices from 2014 and 2015. Can’t wait to see the 2016 List of Best Practices. I know the Judges of the exhausting process used to determine the winners. If a contractor wins 1st, 2nd or 3rd in a category, they did far more than draft nice policies and achieve a low recordable rate. This year, Sundt Construction, Inc. was the Grand Award Winner. Try to imagine what it takes for a company this large to so excel in its safety efforts. I’ve served on the AGC National Safety Committee with Sundt Safety Professionals and they deserve the award. Got other clients and friends on the list, such as Faith Technology, and we’re proud of them.

Follow this link to the AGC Alliant Building Awards, which were also released at the AGC National Convention. Must give a shout out to Gilbane. See also: http://www.businesswire.com/news/home/20160322005228/en/Alliant-Announces-Winners-2016-Build-America-Awards . Send us information about other safety and HR Awards.

Follow this link to Construction and Engineering giant AECOM’s recent release of its thoughtful 2015 AECOM Safety Report: Getting to the Heart of Safety. I’m sure that AECOM would wisely state that they are a work in progress, but what does it say about a company that they go to such effort for an annual US and International Safety Report? AECOM includes sterling safety professionals from URS, Hunt, Tishman and other entities and seems to be drawing ideas from an All Star Team.

Send me your ideas and we’ll tout them.

Finally, 11,000 employee Children’s Healthcare of Atlanta, deservedly recently won its 10th consecutive placement on the elite “Fortune magazine 100 Best Companies to Work For.” Their win (again!) was not an accident. CHOA is wildly creative in how they recognize employee achievements and they celebrate and support employees who are pregnant, seek to improve their health, or serve in the US armed forces. Recently, CHOA formed teams of runners to push runner wheelchairs of disabled kids in the Atlanta Half marathon. Try to top that!

Seriously, send examples to me.We’ll talk in future posts about other Construction and General Industry employers and their journeys in improving their safety, quality, and creating a workplace where employees want to work. We can learn from each other’s’ successes AND stumbles. There are only two stages in business … improving or declining. There is no such thing, at least in my experience, in staying the same. What do you think?

Self Help, Management and HR Guidance

I try on Twitter (@howardmavity) to review and repost Articles which are unique and practical but it’s a near-overwhelming task. Please send us articles and posts that you find useful to your work. My buddy Travis Vance does the same (TVanceLawyer).

SITUATIONAL AWARENESS.

We’re often oblivious to our surroundings and that’s a problem for quality and especially for avoiding hazards. I fought full-contact mixed martial arts until I was 5o and had to undergo surgery to repair my optic orbit. Yes, I know that sounds weird, but the comraderie was great and no one intended to hurt one another. As I got older, I was fighting men one half my age. As I aged, I had to be supernaturally alert just to survive. There is something to that old saw about guile overwhelming youth, but only so far. A useful side effect of my middle aged efforts to survive is that I automatically and continuously survey EVERY setting, and even my jock 21 year old son is amazed at my reflexes when I am in LA traffic. My point is that we MUST train workers to be situationally aware. They must never become nonchalant. Employees must constantly evaluate their workplace for hazards.

This attitude is also vital if one has the misfortune to be in an active shooter scenario. Most employees would freeze and/or fall to the ground. That would not be my response. Admittedly years of boxing, judo and karate means that I’d refuse to be a victim. I’d be a hunter. But you don’t have to have 20+ years of fighting experience to be situationally aware. A situationally aware person would somehow find a way to run, and that’s the right decision in most cases.We can’t encourage our workers to get the snot beat out of them for years in martial arts, but we can train employees to constantly survey their environment and to react.With that rather self-serving introduction, please review The Art of manliness’ article: 10 Tests, Exercises, and Games to Heighten Your Senses and Situational Awareness  

Many of us are addicted to social media, so read this article: http://www.entrepreneur.com/article/273031

There are so many worthy articles on this topic, but I really liked 11 Skills that are Hard to Learn but Will Pay Off Forever. These suggestions are so damned practical.

There is so much more that I could share. Let me know what subjects most interest you. I am fairly efficient at reviewing electronic media and I’ll happily post what interests you.

Thanks again for reading my posts. The literally tens of thousands of hits I have received has been an honor. Let me know WHAT YOU WANT TO SEE.  I’ve already received quite a few suggestions after posting this piece last week at Fisher & Phillips Workplace Safety and Health Blog.

 

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Is Your M & A Due Diligent Analysis Really that Diligent?

Due to employers’ understandable aversion to paying legal fees, they often wait until something goes wrong to avail themselves of counsel. That’s regrettable because guys like me with over 30 years of specialized experience prefer to assist clients in avoiding problems and using human capital to succeed. Despite the huge sums paid to lawyers in M& A transactions, many due diligence efforts are rote and ineffective with regard to labor, employment, and especially safety concerns. There are recognizable standards and guides to environmental due diligence but safety due diligence efforts seem to flummox even solid law firms and consultants.

The safety due diligence efforts focus on injury and illness data, OSHA citation history and EMR or other workers comp numbers. These are lagging indicators and tell you almost nothing about the compliance and safety culture of the target company. Even worse, focus on these items and supposed benchmarking with other companies can distract the purchaser from the real meat. Not only may the purchaser miss costly items, they hinder the crucial post purchase integration efforts.

So it was with pleasure that I agreed to participate in Environmental Resource Management’s (ERM) balanced seminar at Georgia Tech next Tuesday (March 31) to discuss the safety issues along with ERM’s professionals’ explanation of environmental issues.

Information on this timely session can be found at ERM’s site. http://www.erm.com/M-A-workshop-Atlanta-March2015

Topics include:

  • Hidden Risks – Understanding ESG (environmental social and governance) matters as part of an acquisition.
  • Safety Due Diligence – Know what systems, culture, and risks you are acquiring. How to develop the right scope to strike a balance.
  • ASTM Phase I ESA Data versus Early Diligence and Critical Analysis of Possible Risks and Liabilities – How to gather the right data so that leadership can make good decisions in a timely manner.
  • Post Merger Integration – Addressing identified EHS risks and making the most of the EHS opportunities following a merger or acquisition.

If you do a proper due diligence into not just safety programs, but also into culture, history, and integration, you’ll not only gain a better picture of the costs ahead, but lay the foundation for later integration efforts. Many integration efforts are haphazard and driven only by efforts to achieve cost savings. Is that really how you want to integrate acquired companies? What happened to using the best of both companies? Is safety just one more item to check off or due to want to incorporate it into Lean manufacturing efforts and as a way to assimilate and engage employees?

I’ll write more on this topic in the future, but in the interim, attend the conference if opportunity presents.

Howard

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Unions and Third Party Groups Use Safety to Attack Fast Food Restaurants

 

Yesterday was one of those occasions when I wish that my predictions had been inaccurate. I have speculated that the SEIU and other unions harassing fast food restaurants would eventually add mass OSHA complaints to their joint employer, discrimination, living wage, and other attacks. Yesterday, you probably saw the articles about “Fight for $5’s” coordinated effort to file OSHA Complaints in 19 cities.

Now, don’t get me wrong. Restaurants, just like every other employer, must remain vigilant to protect their workers and to ensure compliance with OSHA standards. However, I question the sincerity of those OSHA complaints. I am sure that many restaurants need to improve compliance and safety, but I do not like third parties using OSHA’s limited resources to advance other agendas. OSHA deserves a larger budget, but until that exalted day, they have to employ their resources where they are most effective.

The SEIU and other groups readily admit that the OSHA complaints are the latest part of their “Fight For $15 Campaign” which allegedly seeks to hold restaurants accountable for working conditions at franchise locations. The unions’ obvious goal is to eventually organize the huge number of fast food workers, but the transitory nature of such workers has traditionally made them unreceptive to joining a union. The strategy is to make employers so miserable that they give up and simply agree to a card check or other reorganization effort instead of an NLRB-supervised election.

The Complaints are against Franchisees, but is the union trying to involve the Corporation?

Under existing OSHA law, and OSHA’s Multi-employer Citation policy, absent corporate employees on site, it’s difficult to see how the Corporation would be citable based on requiring adherence to corporate standards. Thus, individual franchise restaurants should not be treated as part of the McDonald’s corporation for purposes of determining repeat violations of the same standards for McDonalds Corporation. Company stores would be different. If a franchisee owns more than one unit, other units could be exposed to Repeat violations if the same violations occur in a five year period. Repeat citations of routine items account for most of the six figure citations against companies with multiple locations. I do not see how the corporation would be subject to OSHA citations for individual franchisee’s stores. However, given the NLRB’s recent efforts to allege joint employment between restaurants such as McDonald’s and their franchisee, it will be interesting to see OSHA’s approach.

Use this concern to “Check” OSHA Compliance.

In the interim, restaurants should treat these complaints as a wake-up call to ensure that they are in compliance with OSHA’s standards. Keep in mind that you may maintain a safe work environment but still miss certain OSHA requirements. Likewise, OSHA standards are just part of a good employer’s safety efforts.

Common restaurant OSHA violations include:

  • allowing materials to occasionally block exits, fire extinguishers and electric panels, such as during deliveries;
  • inadequately marked exits; unacceptable accumulation of water on the floor and trip hazards
  • failure to maintain Safety Data Sheets (SDS) for hazardous chemicals used
  • failure to document training employees who wash dishes, clean and perform other duties which require such chemicals
  • adequate eye protection and other PPE for the use of chemicals

The Press Releases and posted “Fight For $15” video emphasizes exposure to grease burns; especially associated with cleaning and emptying grease. Restaurants should carefully check for proper procedures, PPE, and disposal practices.

Do Restaurant Managers know how to handle an OSHA Inspection, as well as handbiling and protesters?

Most restaurant managers never meet OSHA and have no idea how to manage an OSHA inspection. The way in which they manage the inspection may be the difference between a good result and thousands of dollars in citations. Is a corporate, private consultant, trade association or law firm ready to advise such managers?

It is questionable whether the unions’ latest efforts will in anyway assist in organizing restaurant franchisee employees, but review my past article about UNITE-HERE’s multi-year safety attacks on the Hyatt Corporation if you want to see the extraordinary expense and hardship such corporate-wide attacks can cause. You might also review these past posts on third party attacks on Retailers, Restaurants and on Distribution.

Howard A Mavity

Fisher & Phillips LLP

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