Our Take on Coronavirus: Be Proactive and Don’t Panic.

Our firm, Fisher Phillips LLP, will be providing regular updates and guidance, so follow us, but here’s an interim update.

We’re following rapidly developing news about a novel 2019 corona virus first identified in Wuhan, China. The new coronavirus, 2019-nCoV, is not a flu but is a pneumonia-like infection. While influenza and coronavirus share some symptoms, the coronavirus is not a flu.

We are still learning about the new coronavirus, but so far, the CDC describes it as a very serious public health threat, based on current information, the immediate health risk from 2019-nCoV to the general American public is considered low at this time. The World Health Organization (WHO) has not declared a Public Health Emergency of International Concern (PHEIC). Nevertheless, employers and individuals should monitor the CDC site, 2019 novel coronavirus, Wu hand China, and other public health sources. While much of the initial news coverage has been accurate, we remember how Severe Acute Respiratory Syndrome (SARS), another Coronavirus, was first described in 2002 as “the big one” and “killer bug.” While SARS was a serious new virus, officially there were 8098 cases, 774 died and the outbreak was largely over in a few months. A panic is neither helpful or appropriate.

 What is a Coronavirus and How Does it Spread?

Coronaviruses, so called because of their crownlike shape, range from the common cold to SARS-CoV and 2012’s MERS (Middle East Respiratory Syndrome). Coronaviruses differ from Avian (H1N1) influenza, and swine flu. Experts are relying on 2012’s MERS and SARS to extrapolate how 2019-nCoV will spread and behave.

We do not yet know with certainty how the new coronavirus is transmitted. As in the case of SARS, researchers believe that the virus is Zoonotic, and jumped from animal to human, probably from contact with bodily fluids during preparation in the large Wuhan market (Photos and Description). While possible, spread through eating infected meat is less likely, especially if cooked above 150 degrees.

The virus symptoms manifest as a mild to severe respiratory illness with fever, cough and difficulty breathing. The CDC believes at this time that symptoms of 2019 – in COV may appear in as few as two days or as long as 14 days after exposure.

Research has not yet confirmed person to person spread, but it appears to have SARS and MERS generally spread between people who had “close contact,” which could loosely be described as coughed or sneezed upon. Fortunately, experts do not believe that this will manifest itself as a highly infectious airborne virus.

Prevention and treatment.

As in the case of the annual influenza, SARS, avian flu, and swine flu, the best way to prevent expansion is to avoid exposure. Take the same actions you would to avoid the flu.

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use an alcohol – based hand sanitizer.
  • Avoid touching your eyes, nose, and mouth with unwashed hands.
  • Avoid close contact with people who are sick.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces.
  • Surgical masks have not been proven to definitively protect one because they may not be tight and allow droplets around the edges. However, masks prevent you from unconsciously touching your eyes, nose, and mouth. Medical workers are often using N-95 respirators.

Schools employers and other organizations should double down on their education and wellness efforts to prevent the seasonal flu which is already one of the worst flus in the last 10 years.

What about travel?

So far, U.S. 2019-nCov cases have involved people who had been traveling in affected areas. While we may see people spread the virus within the U.S., a current focus should be on avoiding overseas exposure.

The US State Department has issued a level 4 warning recommending the travelers not travel to Hubei Province, including Wuhan. A Level 2 Warning has been issued for all of China – “Exercise Increased Caution.”

No warnings have been issued generally about travel.

 What if I have traveled to China?

If you feel sick with fever, cough or difficulty breathing, you should consult a medical provider.

At this point, the CDC believe that if someone has not presented symptoms within 14 days, they do not have the coronavirus, and are not infectious.

The CDC has not definitively determined if an individual can be infectious before the presentation of symptoms; however, presumably, one would not present a risk of infection after 14 days, regardless of one whether one presents symptoms; assuming the assumed incubation period is accurate.

If one traveled to China, transmission could’ve occurred if one had contact with sick people, live or dead animals, animal markets, and products that come from animals, such as uncooked meat.

What Do I Do Next?

Monitor information and educate employees to reduce unfounded fears about travel, flying, coworkers, and Asians. Silence breeds suspicion and paranoia.

Repeatedly, creatively, and aggressively encourage employees, students, and others to take steps to avoid the flu. Perhaps the most important message is to stay home if sick.

Presenting a fever or difficulty in breathing is not always associated with influenza and indicates that an individual should seek medical evaluation.

There is no vaccine or easy way to test for the coronavirus. Only the CDC can test.

Except for China, the US State Department and the CDC have not issued travel restrictions. Organizations should encourage their personnel to follow the same travel practices that are currently employed by air and other passengers to avoid the flu, common colds, and other maladies.

If employees refuse duties or travel, try to work out an amicable resolution. Under the Federal OSHAct, employees can refuse to work only when a realistic threat is present. Employees who object on behalf on others or act in groups are covered by the National Labor Relations Act’s protection of concerted protected activity.

According to the CDC, some individuals may be more at risk of infection and that fact should be considered. Follow the CDC direction on pregnant employees or on other reproductive issues, and do not make decisions without medical support. Spend a few minutes with counsel.

Long-term Planning.

SARS, H1N1, Swine Flu and MERS have been described as ” dress rehearsals for future epidemics.” We have improved our response each time, but we have also been lucky as to the time of the year and areas infected. Employers must consider Pandemics in their Business Continuity Planning.

In the short term, an expanding outbreak in China could pose significant supply-chain and market challenges.

Healthcare must build on its experiences with recent Pandemics and Ebola because experts speculate that we are not ready for a mass outbreak. See WSJ: US Hospitals aren’t Ready for Coronavirus.

Howard Mavity

Fisher Phillips LLP

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Well Read Warriors. The US Marine Corps’ Recommended Reading List for All Levels.

While reading the Autobiography of respected former Marine Corps Commandant and Secretary of Defense, James Mattis, I was reminded of the wide-ranging books Marines of all levels are encouraged to read. I’ve pasted below, the 2019 Marine Corps Commandant’s Professional Reading List

I want Marines to read beyond the list, too, especially paying attention to current events, science and technology, and what our potential adversaries are up to around the world

  • The 2019 Commandant’s Professional Reading List (CPRL) represents an updated version of those books most pertinent for professional development and critical thinking at each level. 
  • The CPRL is arranged into two sections: “Commandants Choice” and “Grade Levels.”  Each Marine shall read a minimum of five books from the “Commandants Choice” or “Grade Level” sections each year.
  • Marines should attempt to read all titles within their level prior to proceeding to a higher level.
  • In addition to the reading list, Marines are highly encouraged to incorporate periodicals into their reading regimens.  Scholarly and professionally oriented articles published by independent magazines and journals foster innovation, PME development, critical study of the profession of arms, and serious discussion regarding topics of interest to the Marine Corps.  Professional publications inform debate on current, topical issues of relevance to the Marine Corps and promote intellectual growth of the individual Marine. 


The 12 Lists track the career arc of the entry level enlisted Soldier to Senior Officers.

Given my age and stage, I pulled the Senior Officer Level List, which focuses on Geopolitics, History, Government, Changes in Technology, Failures from the Past, and of course, Leadership.

Senior Level – Officer

DIPLOMACY by Henry Kissinger 
Overview of the history and an account of Henry Kissinger’s negotiations with world leaders. The author describes how the art of diplomacy has created the world in which we live, and how America’s approach to foreign affairs has always differed vastly from that of other nations.

Essential guide for newly assigned military personnel, fresh civilians, and interested outsiders to the Pentagon’s informal set of arrangements, networks, and functions that operate in the service and joint-service world. It delivers practical advice and helpful hints about surviving the pressures and problems of working in “The Building.” If you’ve been assigned to the Pentagon or are starting work for any large company, you need to read this book.

EVERY WAR MUST END by Fred Charles Iklé
Every War Must End, which Colin Powell credits in his autobiography with having shaped his thinking on how to end the first Gulf War, analyzes the many critical obstacles to ending a war–an aspect of military strategy that is frequently and tragically overlooked. This book explores the difficult and often painful process through which wars in the modern age have been brought to a close and what this process means for the future. Iklé considers a variety of examples from twentieth-century history and examines specific strategies that effectively “won the peace,” including the Allied policy in Germany and Japan after World War II.

Barbara W. Tuchman won her second Pulitzer Prize for this nonfiction, authoritative work of history that recounts the birth of modern China through the eyes of one extraordinary American. General Joseph W. Stilwell was a man who loved China deeply and knew its people as few Americans ever have.

SUPREME COMMAND: SOLDIERS, STATESMEN, AND LEADERSHIP IN WARTIME by Eliot A. Cohen  This book offers compelling proof that, as Clemenceau put it, “War is too important to leave to the generals.” By examining the shared leadership traits of four politicians (Abraham Lincoln, Georges Clemenceau, Winston Churchill, and David Ben-Gurion) who triumphed in extraordinarily varied military campaigns, the author argues that active statesmen make the best wartime leaders, pushing their military subordinates to succeed where they might have failed if left to their own devices.

THE GUNS OF AUGUST by Barbara W. Tuchman; Robert K. Massie (Foreword by) Selected by the Modern Library as one of the 100 best nonfiction books of all time. In this landmark, Pulitzer Prize-winning account, renowned historian Barbara W. Tuchman re-creates the first month of World War I: thirty days in the summer of 1914 that determined the course of the conflict, the century, and ultimately our present world. Beginning with the funeral of Edward VII, Tuchman traces each step that led to the inevitable clash.

THE INNOVATOR’S DILEMMA: WHEN NEW TECHNOLOGIES CAUSE GREAT FIRMS TO FAIL by Clayton M. Christensen  Innovation expert Clayton M. Christensen says outstanding companies can do everything right and still lose their market leadership—or worse, disappear altogether. And not only does he prove what he says, but he tells others how to avoid a similar fate. Focusing on “disruptive technology,” Christensen shows why most companies miss out on new waves of innovation.T

HE LITTLE BOOK OF ECONOMICS: HOW THE ECONOMY WORKS IN THE REAL WORLD by Greg Ip  From inflation to the Federal Reserve, taxes to the budget deficit, the author walks us through how the economy really works and its role in our everyday life.

How the United States uses economic embargoes and financial tools as weapons against murderous terrorist groups and “rogue states” such as North Korea, Iran and Syria. Zarate, a senior adviser at the Center for Strategic and International Studies, is a former federal prosecutor who joined the U.S. Treasury Department after the 9/11 attacks to figure out ways to constrict the financing of terrorist groups. Relying heavily on anecdotes, acronyms and actual case studies, he provides detailed explanations of secretive operations far less publicized than ground wars and drone strikes.

In a classic work, Samuel P. Huntington challenges most of the old assumptions and ideas on the role of the military in society. Stressing the value of the military outlook for American national policy, Huntington has performed the distinctive task of developing a general theory of civil-military relations and subjecting it to rigorous historical analysis.

THE LANDMARK THUCYDIDES: A COMPREHENSIVE GUIDE TO THE PELOPONNESIAN WAR by Robert B. Strassler (Editor)  Comprehensive guide to the Peloponnesian War. It includes several maps, brief informative appendices by classical scholars, explanatory marginal notes on each page, an index of unprecedented subtlety, and numerous other useful features.

THE INEVITABLE: UNDERSTANDING THE 12 TECHNOLOGICAL FORCES THAT WILL SHAPE OUR FUTURE by Kevin Kelly  Much of what will happen in the next thirty years is inevitable, driven by technological trends that are already in motion. Kevin Kelly provides an optimistic road map for the future, showing how the coming changes in our lives – from virtual reality in the home to an on-demand economy to artificial intelligence embedded in everything we manufacture – can be understood as the result of a few long-term, accelerating forces.

THE FEDERALIST PAPERS by Alexander Hamilton; James Madison, et al. 
This book explains the complexities of a constitutional government—its political structure and principles based on the inherent rights of man. Scholars have long regarded this work as a milestone in political science and a classic of American political theory. It is commonly referred to the third “sacred writing” of American political history, behind the Declaration of Independence and the U.S. Constitution.

Biography of Abraham Lincoln, centered on his mastery of men and how it shaped the most significant presidency in the nation’s history. Throughout the turbulent 1850s, each of his “rivals” energetically sought the presidency as the conflict over slavery was leading inexorably to secession and civil war. Lincoln’s understanding of human behavior and motivation enabled him to bring his disgruntled opponents together, create the most unusual cabinet in history, and marshal their talents to the task of preserving the Union and winning the war.

STRATEGY: A HISTORY by Lawrence Freedman. Sir Lawrence Freedman, one of the world’s leading authorities on war and international politics, captures the vast history of strategic thinking, in a consistently engaging and insightful account of how strategy came to pervade every aspect of our lives.

Analysis of how and why the United States became involved in an all-out war in Southeast Asia. Based on transcripts and personal accounts of crucial meetings, confrontations and decisions, it re-creates what happened and why. The book focuses on: President Lyndon Johnson, Robert McNamara, General Maxwell Taylor, McGeorge Bundy and other top officials.

This book looks into the future to provide some intriguing answers about the ways Western armed forces—which have traditionally been trained to fight conventional, not guerrilla, warfare—may need to evolve.

CHAIRMAN XI REMAKES THE PLA: ASSESSING CHINESE MILITARY REFORMS by Phillip C. Saunders (Editor), et. al  China’s current military reforms are unprecedented in their ambition and in the scale and scope of the organizational changes. Virtually every part of the People’s Liberation Army (PLA) now reports to different leaders, has had its mission and responsibilities changed, has lost or gained subordinate units, or has undergone a major internal reorganization.


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Safety and HR Lessons from Movies – First Man.

Recent Sundance Film Festival releases, The American Factory and Untouchable, the first Weinstein #METOO documentary, illustrate workplace lessons presented by well made films.

Similarly, Damien Chazelle, the director of La Land and Whiplash, has another Oscar nominee this year, the superb movie “First Man”—the story of Neil Armstrong, the first man to step on the moon. A stunning Apollo 11 documentary was also released at Sundance, which distilled 300 hours of 70 mm cinema-quality film into an outstanding 1 ½ hour doc. Seen together, these movies teach a great deal about how employers should work with their employees in the aftermath of tragedy.

Consider that Neil Armstrong lost 10 or 12 colleagues at Edward’s airbase as a test pilot and at NASA, culminating with his best friend astronaut Ed White in the tragic Apollo 1 fire.

Even In a Data-driven Economy, Employers Must Consider the Human-side of the Workplace.

Neil Armstrong was a larger than life hero who possessed an engineer-driven ability to overcome fear and act during crisis. He is portrayed as a typical post WW II man who guarded his emotions and was austere and aloof in many interactions.

However, as is often the case in the workplace, personal problems contributed to his increasingly obvious inner pain and problems with his children and his stalwart wife (Claire Foy). Those personal problems affected his work and his relationships with coworkers.

Armstrong’s pain first stemmed from the loss of a young daughter to cancer. The movie opens with many shots of doting dad, Neil Armstrong with his family and much adored daughter. She develops cancer and despite Armstrong’s herculean efforts, she dies young. One poignant scene shows an emotionless Armstrong sneak away from the visitation to his office, lock his door, and sob uncontrollably. He never shows emotion or even talks about her for the remainder of the movie, although it is obvious that she is seldom far from his mind. Coworkers and family are concerned, but do not know what to do.

Armstrong can’t talk about fear and barely tolerates questions from a press who worships astronauts. Meanwhile, he is resolutely loyal to friends, still loves his wife even though he hurts her, and makes the mission succeed. Ryan Gosling makes Armstrong as real and imperfect as the person working beside you. You never lose respect for the man.

Workplace Deaths and Catastrophes.

It is standard operating procedure for employers to bring in grief counselors after a workplace fatality, and increasingly our “manly” culture acknowledges that it’s human to be devastated to lose a coworker, or even worse, someone for whom you were responsible. Seeking counselling is no more a sign of weakness than wearing a splint.

Survivor guilt is applicable to workplace fatalities. Over the course of working with over 570 workplace fatalities, I’ve observed that coworkers feel unmerited guilt after the first 24 hours wears off, and, in response, look for anyone and anything to blame. This is one reason why coworkers often inaccurately make comments like “we knew it was coming,” or “everyone knew it was unsafe.” While such comments are attention-getting, they are rarely true.

As to the supervisors, we’ve seen men and woman ruined by the loss of a subordinate. It’s common for supervisors who lost an employee to never come back to work, even though they did nothing wrong.

See my earlier Post on responding to employees who lose someone.

Broader Application to the Workplace.

While you shouldn’t unnecessarily pry into your employees’ personal lives, psychological and biochemical studies show that not only personal tragedies, but depression, family troubles, and other stressors can result in physical fatigue, diminished judgment, and weakened reflexes. Studies now show, in fact, that fatigued executives are more likely to commit ethical and judgment violations.

In the scene where NASA interviews Armstrong for the space program, they ask him whether the recent death of his daughter would affect his performance and matter-of-factly states only that “I cannot imagine that it would not.”

Employers need to consider when and how they should approach employees about personal issues affecting their work. Employers also underuse Wellness Programs and fail to train frontline supervisors to be sensitive to when off duty problems can affect effectiveness and even safety. Wellness efforts are also woefully underused to equip employees’ families to respond to opiate issues and conditions leading to workplace violence.

Amazon – First Man.

Rotten Tomatoes – First Man (87%).

Apollo 11 Trailer: The Moon Landing Documentary Critics Call ‘Astonishing’ (IndieWire)


A few other Movie observations:

  • Both movies are superbly edited and the soundtracks are brilliant. In the Apollo 11 Documentary, even though you know how the story ends, the soundtrack is one of the reasons that you stay on the edge of your seat.
  • As my film critic son would say, the sound in First Man “is off the chain.” I had no idea about how terrifying the noise of a giant rocket were in takeoff. https://www.nextbestpicture.com/ https://twitter.com/mavericksmovies
  • Unfairly, some right-leaning commentators accused First Man of being unpatriotic because it did not show Armstrong planting the flag. The whole movie is a love letter to the USA space effort! The Director spent little time focusing on the moon activities because he had clear goals of what he wanted to show about Armstrong and how he, in some ways, finally made peace with his daughter’s death as he stared at the amazing majesty of the moon surface with Earth handing above. You’ll tear up.
  • The movie was pre-OSHA and operated with a get-it-done, we’ll-pay-the-cost mentality. A fascinating side story is how NASA turned around safety (and efficiency) after the loss of the Space shuttle.
  • After again seeing what the wives endured, I can now see why my wife loved the book, The Astronauts’ Wives.
  • Astonishingly, First Man built sets and did NOT use much green screen/CGI as do most similar movies!
  • Texans and indie movie fans should be proud that Neon bought the Apollo 11 Documentary and several outstanding Sundance Films such as Monos. Neon is the Film Company co-founded by Tim League, who owns the legendary Alamo Drafthouse.


Posted in Employee Assistance Plans and Counselling, movies, Uncategorized, Workplace Fatalities, workplace violence | Tagged , , , | 1 Comment

Workplace Lessons from Movies: “Untouchable”

The first full documentary on the fall of film mogul Harvey Weinstein premiered at this year’s Sundance Film Festival, and it can provide employers with an important reminder about the need to rid workplaces of sexual harassment and gender discrimination.

Untouchable” makes real the sexual assaults and degradation young women alleged against Weinstein. The interviews are painful to watch and a needed reminder of the harm caused by such behavior. While the film does not explore why executives were either oblivious to Weinstein’s behavior or afraid to act, it does show apparently decent people who now feel ashamed. They have no explanation for their failure to act.

The entertainment industry is unique from most workplaces. Based upon near-weekly reports, the entertainment industry still grants almost unlimited power to successful people. Unfortunately, while Hollywood may present the most glaring examples of employers engaging in sexual harassment, it would be foolish to think that such behavior could not occur in other workplaces.

But the problem is more deeply rooted in additional aspects of the traditional Hollywood work culture.

Harassment and Sexual Misconduct May be Part of a Broader Workplace Problem.

Sexual harassment prospered in an environment which accepted abusing subordinates. Another Sundance debut, Late Night, is a hilarious Devil Wears Prada – like story about a tyrannical talk show host, Emma Thompson, who terrorizes her faithful assistant, Mindy Kaling, the only women in the all-male writers’ room. One of the reasons the movie works is because the audience knows that this kind of workplace behavior actually happens.

Last year, the comedy, Set it Up, was based on interviews with numerous personal assistants in the entertainment industry. Audiences, especially former assistants, laughed at the obliviousness of the powerful female editor and the male investment manager, but their form of bad behavior is still too common. Why are we surprised that the thoughtless mistreatment of employees may evolve into harassment and discrimination?

Workplace Problems May Begin Small and Grow.

When I first began conducting harassment avoidance training, I used an analogy from my climbing days. We realized that most serious injuries and deaths occurred when someone got to close to an edge when they did not need to do so. We would draw a talc line about 6 feet from the edge. If you crossed the line, you either had to be tied off or in the process of climbing. Similarly, one does not focus on a black-and-white definition of unlawful harassment and avoid it. I once trained a group of young physicians and had to chide them for asking “would this be harassment?” questions in an effort to determine how far they could go without engaging in harassment. Instead, the focus should be on drawing the line 6 feet back and focusing on professional behavior.

Keep in mind that while egregious claims of sex harassment grab our attention, statistics show that employers face more claims of race discrimination and harassment than sexual harassment claims. How many of these claims occurred because supervisors mishandled employees and the employees ascribed the motive to their race … or to their age, national origin, age, or disability condition?


With that background, here are some takeaways after viewing “Untouchable” and considering how the film can guide your workplace practices.

  1. Do not wait for harassment to occur. Train supervisors to act before bad behavior becomes bullying or harassment.
  2. Recognize that harassment is often about “power” and thus, it is not enough to train frontline supervisors and middle management. One must find ways to make the issue real to upper management, who, after all, has the most to lose.
  3. Involve upper management in training and discuss setting an example. Share lots of “horrobilia” about highly public claims of harassment, mainly against executives.
  4. Sadly, fear is useful in harassment avoidance training. People need to know what is at stake – make it personal. For example, describe how a claim of harassment could hit them in the pocketbook, or could even cost them their job.
  5. A failure to act is not solely a characteristic of Hollywood executives. Employers need to consider how to address this problem through leadership and training.
  6. Ponder how to make your internal reporting procedures practical and effective.
  7. Reporting procedures are worthless if they do not work.
  8. Do not limit anti-harassment and discrimination training to sex. Include bullying, which often spawns discrimination claims, and more chillingly, workplace violence.
  9. Invest in much more training for frontline supervisors, especially practical management training and instruction on dealing with people.
  10. Many of our blog readers are Safety Professionals. As we have explained before, safety professionals are constantly on the shop floor and often are the first to encounter workplace problems. Build a close relationship with the HR folks. They’ll love you.
  11. Surveys show that many employees still fear reporting sexual harassment because they’re afraid that the employer is not going to take it seriously, or they’re afraid that they’ll lose their job, be ridiculed, intimidated, shamed, or embarrassed by other employees. Use upper management to dispel these concerns.
  12. Take advantage of the many articles, alerts, seminars and webinars provided by Fisher Phillips and others.

Other Movie Information.

  • Some critics believe that the accomplished documentarian rushed Untouchable so as to be the first documentary on Weinstein and to achieve a symbolic release at the Sundance Film Festival, where Weinstein was a larger than life player. The movie has problems.
  • The worst extreme of Hollywood’s culture is illustrated by Karina Longworth’s Seduction: Sex, Lies, and Stardom in Howard Hughes Hollywood, which painfully describes how a culture demeaning to women began in the California film industry.
  • Set it Up surprised people and was called one of the best creative romantic comedies of the last 10 years. See, Reviews at Rotten Tomatoes and Variety review. The movie is a Netflix product.
  • Late Night has been picked up by Amazon and even gathered a bit of early Oscar talk for Emma Thompson.




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Coverage and Comments on John McCain.


I have pasted below a variety of articles and comments on John McCain by Republicans and Democrats, and Liberals and Conservatives. Most of McCain’s admirers differed with him on some issues, and the flipside of passion is sometimes being a tad erratic. But through it all, one admired his honor and his willingness to fight to the end for a cause in which he believed.

These days, decent people long for political leaders who somehow find common ground and work across the aisle where possible without sacrificing core beliefs. As a minister once told me about doctrine, “focus on the major and not the minor issues.” To paraphrase him, honor God and love others, and don’t get hung up on the minutia. My interpretation … achieving lasting good matters; not ideological purity.

John McCain sometimes incensed me with his individual positions, but I’d take his irascible independence over 100 of the rigid Freedom Caucus members or those lockstep Democrats.

One night, I spent almost an hour walking in D.C. with John McCain. I was humbled by his humility, down-to-earth nature, and forthrightness. He was what I expected. Imperfect, but in his own way, noble.

My take … no one is perfect and if anyone was perfect, I wouldn’t want to spend time with them. If we gathered FDR, Lincoln and Washington for drinks and asked them if they ever screwed up, they’d choke and spew out their drinks, and laugh for 10 minutes before replying. When did we start expecting perfection from great leaders? The difference in McCain versus Nancy Pelosi, Chuck Schumer and Donald Trump is that McCain may have made bad decisions, but at his core, he was an honorable public servant … a wilder version of Bush I. But hey, they were both Navy. They had met the elephant and lived to tell about it. God Bless those guys. We are the better for having known them.


McCain’s legacy will be about a trait, more than any individual cause that was both larger than himself and is in perilously short supply in American politics right now: Honor.

John McCain’s legacy: A sense of honor that has become rare in a polarized Washington

Analysis: McCain could be stubborn, but is best remembered for letting go of grudges and making common cause with opponents in the national interest.

Few of us have been tested the way John once was, or required to show the kind of courage that he did. But all of us can aspire to the courage to put the greater good above our own.” At John’s best, he showed us what that means. And for that, we are all in his debt. Michelle and I send our most heartfelt condolences to Cindy and their family.

 Barak and Michelle Obama


Some lives are so vivid, it is difficult to imagine them ended. Some voices are so vibrant, it is hard to think of them stilled. John McCain was a man of deep conviction and a patriot of the highest order.

George W. Bush

Senator John McCain believed that every citizen has a responsibility to make something of the freedoms given by our Constitution, and from his heroic service in the Navy to his 35 years in Congress, he lived by his creed every day.

He was a skilled, tough politician, as well as a trusted colleague alongside whom Hillary was honored to serve in the Senate. He frequently put partisanship aside to do what he thought was best for the country, and was never afraid to break the mold if it was the right thing to do.

Bill and Hillary Clinton

“A Warrior Patriot.”

Hillary Clinton in a heartfelt CNN Interview.

When Clinton, a former Democratic senator from New York, first started traveling with McCain, she told CNN’s Dana Bash, “I saw someone who revered the values of our country, and he is always thinking about America’s place in history and America’s place in the world. And I saw his passion and his love, his love of his family, his love of our country, his love of the friends that he has made over the years, and he was a patriot regardless of party, He is a patriot, and I am honored that he is also my friend.”

Clinton told Bash that she thought about McCain’s 2008 presidential election concession speech when she had to give her own in 2016 after a shocking defeat by President Donald Trump. In the 2008 speech, McCain urged his supporters to join him in working with then-President-elect to bridge differences in a spirit of goodwill.

“I thought that it was such a tribute to who he is as a man and as a political leader,” Clinton said, adding that she, too, tried to reach out to her supporters, especially young women, to keep them from being discouraged.

“And so I tried to speak in a way that would create the same sort of reaction — even from people who were incredibly upset about what happened … and I did want to give the President-elect all the opportunity in the world to transition from being a partisan and whipping up the feelings, the anger, the resentment, the fears of the people who supported him, to being a President for all the people,” “That’s what John McCain would have done had he won.”

Clinton recalled the years working and traveling alongside her Republican colleague, telling Bash that she was initially “a little surprised” when he first approached her to travel together.

“He liked to try out different colleagues to see whether they were good traveling companions,” Clinton said.

When McCain inquired about traveling, Clinton said she “immediately said, ‘sure.'”

“During those long, long flights, we had a lot of time to talk. We talked about the unfairness that sometimes infects our politics,” Clinton recalled. “If you were his friend, he would stand up for you, he would defend you. He didn’t like the personal attacks that went along with politics that became increasingly common.”

As you go through life, you meet few truly great people. John McCain was one of them. His dedication to his country and the military were unsurpassed, and maybe most of all, he was a truth teller — never afraid to speak truth to power in an era where that has become all too rare. The Senate, the United States, and the world are lesser places without John McCain.

Chuck Schumer





LISTEN: Special NPR Politics Podcast On Sen. McCain


William Thomas Cain/Getty Images


In this special episode, Tamara Keith, Kelsey Snell, Scott Horsley and Ron Elving remember Sen. McCain’s life, legacy and how he shaped the Republican party. Listen here.


From A POW Prison, John McCain Emerged A ‘Maverick’



Horst Faas/AP


While the Arizona senator and two-time presidential candidate will be remembered for his self-proclaimed “maverick” persona, it was his military bloodlines and 5 1/2 years as a prisoner of war in Vietnam that shaped much of McCain’s legacy. NPR’s Don Gonyea and Brakkton Booker look at how McCain’s time spent as a POW shaped his future in the United States Senate.

Read NPR’s full obituary coverage of Sen. McCain, the ’Patriot,’ ‘Hero,’ and ‘American Original.’

LISTEN: McCain In His Own Words



Stephan Savoia/AP


Anyone who followed the remarkable saga of Sen. John McCain will recognize the voice reading here. His memoir, The Restless Wave, is a plain-spoken and often painful personal accounting; a résumé of a contentious career and a defense of controversial political decisions. It may inspire or enrage. But it is less an effort to provoke such conflicting responses than a paean to the late senator’s idea of America. Read Ron Elving’s review here.


From The NPR Archive





NPR’s Politics team covered John McCain’s storied life and career from his days as a freshman senator from Arizona to his final moments as a beloved colleague to lawmakers on Capitol Hill. Peter Overby looks back on how McCain made campaign finance reform a years-long mission. Dana Farrington followed McCain as he called for compromise in his return to the Senate floor after a devastating brain cancer diagnosis. Philip Ewing wrote about Washington without McCain.



John McCain Remembered as Principled Leader

Washington awoke Sunday to an outpouring of grief and condolences, as leaders and commentators from both sides of the political aisle paid homage to Sen. John McCain after the Republican lawmaker’s family confirmed his death on Saturday from brain cancer. 93


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Want to See Real World Safety Efforts? Check Out the Willis Towers – AGC Construction Safety Excellence Awards.

There are many worthwhile safety awards such as OSHA’s VPP site, EHS Today “America’s Safest Companies Award,” and numerous trade groups’ awards based heavily on injury date, but none impresses me as much as the Willis Towers – AGC Construction Safety Excellence Awards (CSEA).

.Competitors don’t receive an Atta boy from OSHA or an ISNetworld or other rating service award. They win the admiration of savvy safety-conscious construction employers throughout the U.S. Employers often spend years competing for this award. They apply, learn from their loss, and make further improvements. Safety becomes a passion with management and employees. Construction folks like to compete and win.

I’ve attended some of the final judging where the CEOs and their Safety Directors make a presentation, and I’m impressed. No smoke and mirrors, just practical strategies supported by management and embraced by employees.

I’ll paste Judge Mike Fredebiel’s introduction of this year’s awards when he shared them with our AGC-National Safety Committee (my favorite safety group):

I am pleased to send you this year’s Construction Safety Management Best Practices. Willis Towers Watson produces this thorough document in collaboration with the Associated General Contractors of America (AGC). The publication is produced as part of the annual National Construction Safety Excellence Awards. ….

It’s been my honor to be a judge for the awards, and for the sixth year in a row assemble this document with my fellow judges. In the process we look at eight categories:

  1. Senior Management Ownership and Participation
  2.     Risk Identification and Analysis
  3. Task Design – Engineering Controls for Safety
  4. Safe Work Methods (Planning and Validation of)
  5. Worker Engagement, Involvement, and Participation
  6. Safety Training and Validation of Training
  7. Subcontractor Management
  8. 911 – Emergency and Crisis Management

I have written numerous times about these awards, but this year I’ll let Mike’s Summary document speak for itself. View this Booklet as an old time Morrison Cafeteria’s line … or for the more sophisticated, a smorgasbord … and pick something from one of these categories and try it out.

2018 Willis Towers – AGC CSEA Summary.

I also encourage you tom peruse some of these past years’ summaries. One could teach a semester-long course on the ideas and strategies in these summaries.


2015 –  https://www.fisherphillips.com/assets/htmldocuments/2015%20Willis-AGC%20CSEA%20Safety%20Management%20Showcase%20Final%20002.pdf

2016 –  https://www.fisherphillips.com/assets/htmldocuments/2016%20AGC-Willis%20Towers%20Watson%20CSEA%20Safety%20Management%20Showcase.pdf


Congrats to the winners of these Awards and the employees who have returned home healthy each night because of their efforts.


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The U.S. Supreme Court is Bigger than Any President or Nominee – My Guide to the Nomination Hunger Games. Part I.

No one is truly objective when discussing Supreme Court nominees and their preferred judicial approach. I favor somewhat of a strict constructionist/historical approach and I am obviously generally pro-employer. I’ve tried to select articles which are legally-driven and that were not written by fire breathers. Nevertheless, my leanings still influence this two-part article.

People on the left should not be unduly worried about President Trump’s Kavanaugh nomination; nor should folks on the far Right anticipate reversal of Roe v. Wade and an abandonment of precedent. The Supreme Court has a way of moving lawyers to the middle and emphasizing amicable intellectual compromise.

Yes, Brent Kavanaugh will probably increase the Court’s movement to the right, but gradually and not aggressively. I say “probably” because unlike Democratic nominees, Republican nominees have often swung moderately to the center (Kennedy) or hard left. Let’s not forget that the most progressive and most prone to making laws of our lifetime was comprised mainly of republican nominees.

Chief Justice Roberts has also established that he will not allow rushed and aggressive movement. So I’ll raise issues and link to articles in the hope that you can make your own reasoned analysis and determine the likely effects of the nomination.

Issue 1 – Why can’t the President nominate someone like Anthony Kennedy?

Aside from the facts that BOTH parties seek to nominate a jurist aligned with their views and the term mainstream is meaningless because no definition satisfies a majority, Kennedy was a unicorn.

I’ll quote from a recent Washington Post article, “On abortion and other issues, Kavanaugh’s heroes are more conservative than Kennedy.”

Of course, it would be almost impossible to select a justice in the mold of Kennedy. His unique views provoked equally distributed frustrations: disappointing conservatives by authoring

Obergefell v. Hodges, which established a constitutional right for same-sex couples to marry, and outraging liberals with Citizens United v. FEC, which authorized unlimited campaign spending for businesses and other entities.

In one term, he was the only justice in both 5-to-4 majorities when he (and conservatives) removed a crucial part of the Voting Rights Act and when he (and liberals) overturned the federal Defense of Marriage Act, which denied recognition of same-sex marriages.

“There probably is not a single lawyer in the United States whose views align entirely with the justice’s, and there probably hasn’t been one for a while,” former Kennedy clerk Leah Litman wrote in a tribute to Kennedy on scotusblog.com.

Issue 2Obama nominee Merrick Garland should have been nominated, so do so now.

Garland was a fine jurist; then Circuit Judge Kavanaugh rightly profusely praised Garland. However, politics is a brass knuckle activity and don’t fool yourself – a Democratic controlled Senate would have done the same thing.

Issue 3 – What is the role of the Court?

Again, let’s not kid ourselves, BOTH parties sometimes wish that the Supreme Court would overturn and in essence make new laws in keeping with societal changes (Dems) or stem the legislative tide and restore traditional values (Republicans). In both cases, such desires clash with the Constitutional role of the Court and our system of checks-and-balances. Neither party should succumb to an ends justifies the means mentality.

Some might argue that the left – whatever that even means – may treat political actions with which they disagree as “evil” and thus worthy of any response – and that they trust the notion of wise educated philosophers as more reliable to make decisions than the unwashed common man. To my right leaning buddies who just cheered my bashing of elitism, the right often takes its distrust of the academic and intellectual establishment way too far. And fair is fair, the right sometimes yearns for a Judge who will reinforce “Christian values.”

The Court’s role is to interpret the law, not make it, but even that mission statement leaves considerable latitude to judges. Let’s return to the earlier Washington Post article…

Kavanaugh has spoken approvingly of the metaphor Chief Justice John G. Roberts Jr. used at his confirmation hearings of the judge as umpire. But there are no objective rules, he said, which frees some judges to impose their own views.

“It’s sometimes as if you were asked to umpire a baseball game, and you asked the commissioner of baseball whether the bottom of the strike zone was at the knees or at the hips, and you were told that it was up to you,” Kavanaugh said.

He also acknowledged that it was a difficult question as to when the Supreme Court should honor a precedent as settled law, or when it becomes important to overrule a wrongly decided case. “I wish I had the perfect answer,” he told one audience.

Kavanaugh does not seem inclined to rely on personal subjective beliefs as articulated in his praise of former Chief Justice Rehnquist, his judicial hero.

“He was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” Kavanaugh said.

“The court, case after case had seemed to be simply enshrining its policy views into the Constitution, or so the critics charged,” Kavanaugh said. “During Rehnquist’s tenure, the Supreme Court unquestionably changed and became more of an institution of law, where the court’s power is to interpret, and to apply the law [as] written, informed by historical practice, not by its own personal and policy predilections.”

I’ll do a separate post on the subject of Judicial Philosophy, but that is the real question. terms such as left, right, progressive, liberal and conservative really do not explain the differences in how Judges view the Constitution and make decisions.

As an example, the NYT wrote a solid piece analyzing Judge Gorsuch’s Legal Philosophy at the time of his nomination to the Supreme Court and described his philosophy as follows:

Judge Gorsuch, 49 — who was appointed to the United States Court of Appeals for the 10th Circuit, in Denver, by President George W. Bush — is an originalist, meaning he tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it. This approach leads him to generally but not uniformly conservative results. (My emphasis added).

Some would argue that Gorsuch and perhaps Kavanaugh do not even neatly fit the “Originalist” school. Read this serious analysis of Gorsuch’s Judicial Philosophy and whether Philosophy matters.

Issue 4 – Does Judge Kavanaugh have the credentials and demeanor to be a Justice?

All but the extremists on both sides will admit that Kavanaugh is a judge’s judge and we have 11 years and 300 written opinions to show his analysis, writing style and judicial temperament.

SCOTUS (Supreme Court of the United States) Blog is a solid lawyerly resource and released a good summary about Judge Kavanaugh. Start here: Introduction: A close look at Judge Brett Kavanaugh.

From the NYT Op Ed, A Liberal’s Case for Brett Kavanaugh by Akhil Reed Amar, a Yale Law professor who taught Kavanaugh.

…. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. He sits on the United States Court of Appeals for the District of Columbia Circuit (the most influential circuit court) and commands wide and deep respect among scholars, lawyers and jurists.

Judge Kavanaugh, who is 53, has already helped decide hundreds of cases concerning a broad range of difficult issues.

Good appellate judges faithfully follow the Supreme Court; great ones influence and help steer it. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.

Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. ….

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh has already shown flashes of greatness, admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous. ….

For a discussion on the misbelief that a Justice Kavanaugh will give President Trump a get-out-of-free card, read Kavanaugh on presidential power: Law-review article on investigations of sitting presidents (UPDATED). My read is that Kavanaugh felt misgivings about the negative effects on President Clinton of the innumerable Starr investigations in which he participated. Live and learn. I tend to agree.

 Issue 5 – Can Judge Kavanaugh write?

The ability to write well-reasoned decisions which actually provide Guidance to we poor suffering lawyers and citizens is NOT a common trait. Please tolerate my lawyerly nerding out.

From Law360 (July 10, 2018, 10) –

There’s no argle-bargle in Judge Brett Kavanaugh’s opinions. Instead, he’s made a name for himself on the D.C. Circuit with clear, concise writing.

Justice Anthony Kennedy took his share of knocks for grandiose and occasionally purple prose. The late Justice Antonin Scalia was fond of verbal pyrotechnics, particularly in dissent, using phrases like “jiggery-pokery,” “pure applesauce,” and yes, “argle-bargle.”


But legal writing experts agree: Whatever you think of Judge Kavanaugh’s judicial philosophy, this judge can write.

“Kavanaugh is a great opinion writer in the John Roberts or Elena Kagan tradition,” said Ross Guberman, president of training and consulting firm Legal Writing Pro LLC and the author of books including “Point Made: How to Write like the Nation’s Top Advocates.” “His sentences are crisp and controlled, his word choice punchy, his transitions seamless, and his analysis organized with military precision.”


Judge Kavanaugh has also been honored for his legal writing by The Green Bag, a law journal that annually recognizes a handful of judges for “exemplary legal writing,” for his 2012 opinion in Vann v. U.S. Department of the Interior. ….

Judge Kavanaugh’s style strives to make complex legal questions clear and accessible to a broad audience — a useful trick for a judge on a circuit court that often deals with knotty questions of administrative law.

…. The justices are writing for a variety of audiences: the litigants, the lower courts, journalists, and the public. But they’re also writing for each other. And if an opinion can be written clearly and succinctly, the reasoning that underlies it is often persuasive, or at least doesn’t go too far afield.

“You would hope that a Supreme Court justice is constrained by the need to tell a coherent story,” Livermore said. “Whether that holds up in practice is a different story.”

Issue 6 – Should Judge Kavanaugh pledge to not overturn Roe v. Wade or to uphold or attack other decisions?

Judges may not make pledges and when Senators seek such admissions, they are grandstanding for the press. From the above NYT Op Ed:

Everyone would have to understand that in honestly answering, Judge Kavanaugh would not be making a pledge — a pledge would be a violation of judicial independence. In the future, he would of course be free to change his mind if confronted with new arguments or new facts, or even if he merely comes to see a matter differently with the weight of judgment on his shoulders. But honest discussions of one’s current legal views are entirely proper, and without them confirmation hearings are largely pointless.

Questions on past decisions and analysis are fair game.

Issue 7 – Should One Issue be the Litmus Test of Whether to Approve or Disqualify a Judicial Nominee?

Tough issue. My wish is that no one issue should render a candidate unfit for a judicial post, but I am operating purely from an intellectual standpoint.

As one example, will Senator Paul Rand oppose Kavanaugh solely based on Paul’s strong views against any post-911 government monitoring based on his privacy concerns.

Kavanaugh May Face Stealth Hurdle in Confirmation: Rand Paul

To focus on a more obvious example, I sympathize with friends who consider abortion to be an unparalleled tragedy. However, I also have no problem in understanding the visceral reaction of my female friends of all political persuasions to restrictions on their right to control their body. I am thankful that it is not my job to balance these deeply held concerns.

In a perfect world, which I’ll probably never see, every Justice would go into a case with the attitude that he or she could be the swing vote.


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Things My Daughter Graciously (and probably inaccurately) Claims that She Learned from Her Badger (me).

My birthday is approaching and my daughter composed these things that she claims to have learned from me. It’s been a rough week and she wanted to encourage me. Needless to say, she succeeded.

I pray that I did impart these values because I have worked to achieve them in my life. However, I am a veteran parent and I know better than to claim to have contributed to my children’ successes or to have caused their problems. At soon-to-be 59 years of age, my legacy is about all that matters to me. If you are like me, you feel as if your life experience might best serve as a warning to others of things NOT to do.

So I’ll share my daughter’s observations – and consider them in light of her young legacy of nationally ranked distance runner – tough former fighter – insanely high academic achievements in multiple degrees at different schools – Renaissance personality – and all camouflaged  in a petite little size.

  1. Laugh often and genuinely.
  2. Embrace your nerdiness, and find other nerds to marinate in the nerdly juice with you. Nerd bonding is the most exquisite kind of bonding. 🙂
  3. Fight for the people (and pups) and causes you love, even when you’re fighting alone.
  4. Look for nuance in all situations, even when it hurts to do so.
  5. Be more generous than some people think would be “sufficient” with your resources and your time.
  6. Never miss the chance to hug someone you love.
  7. Be willing to answer the phone at 3 am when it’s someone you love who is calling.
  8. When sh*t hits the fan, kick into warrior mode and stay there til said sh*t is no longer on your ceiling fan…even if it takes a while! No one likes sh*tty fans, after all. 🙂
  9. You can never have too many books.
  10. Don’t be afraid to veer away from your schedule. The best adventures and memories are most often spontaneous.
  11. Having ADD is actually a benefit: it makes you more creative!
  12. Dress in your power clothing when it’s time to kick a$$ and take names.
  13. Going to counseling and taking medicine is a sign of courage and strength, not weakness.
  14. The outdoors are a marvelous therapist.
  15. Dogs aren’t really dogs: they’re furry angel-children, and should be spoiled as such!
  16. Introverts can still be awesome public speakers and teachers.
  17. Follow your career passion, even if it doesn’t pay well and even if it isn’t the most popular choice.
  18. Courage is being scared, but still doing the right thing, even though it scares you!
  19. Be outrageously kind to service industry folks, both with words, actions, and through being “mufaka” (not sure how to spell that one, but you know what I mean).
  20. Take the people you love’s concerns and drama seriously enough to let them vent to you a bit, even if you don’t quite understand what they’re upset about!
  21. Give yourself the introvert time you need to recharge, and don’t feel badly about it.
  22. Being strong doesn’t just have to mean having big muscles: it means an inner strength and ferocity of spirit.
  23. Try to look for the good in other people, even when you really, really, really dislike them!
  24. Sometimes, waiting til the last minute is best, because then you work super, super fast!
  25. It’s ok to be a good writer but to not enjoy writing!
  26. Be a Labrador for those that you love, and a PO’d Doberman against those who seek to wrong them.
  27. Life is too short to take it seriously all the time. Be goofy; smile; and the word will eventually smile back at you, if even just for one brilliant moment.
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Are Michelin Starred and James Beard-quality Restaurants Prone to OSHA Citations?

I’m spoiled. I’ve sought out great restaurants in scores of US cities, great meat-and-threes in rural counties, hole-in-the-wall BBQ joints, and starred restaurants in Europe, Africa and the Middle East.

I am also an OSHA-nerd, and I find myself subconsciously studying everyplace I go for OSHA violations and even what I’d do if there were a fire, mass shooting, or zombie attack. Recently I noticed the same OSHA violations at several accomplished restaurants and upscale hotel/resort eateries.

These violations are not surprising. Nor are they indicative of sloppiness in other areas, as they usually are in most business settings. The truth is that a restaurant presents few hazards compared to construction or a refinery, and it’s not surprising that management could be oblivious to certain low hanging OSHA violations whose impact on safety might not be immediately obvious. Most of these restaurants are alert to slip-and-fall risks, burn and scald situations, and bad lifting habits.

Low Hanging Fruit OSHA Violations are Expensive.

Let’s analogize to Dollar Tree and other retail stores. These stores are not particularly hazardous environments, but they have paid hundreds of thousands of dollars in OSHA penalties because they have many locations and the same recurrent OSHA violations become expensive Repeat Citations when again found at other locations for a five year period. Dollar Tree’s problems arose from common retail problems associated with having ill planned storage areas and multiple deliveries each week. OSHA found blocked exits, fire extinguishers and electric panels. They were also cited for pesky electrical issues such as extension cords run over ceiling joists to run PCs, when permanent electrical connections should have been installed. Any restaurant concept or chain could have the same experience, especially if a union or other group were harassing the company.

Consider these OSHA Press Releases ….

  • Illinois Dollar Tree stores endanger workers with blocked exits, stacked boxes – Retail chain faces similar citations across the nation, $121K in penalties added to total.
  • Missoula Dollar Tree $217,000 for willfully putting Missoula workers at risk.
  • Delaware Dollar General Store ignores dangers of blocked emergency exits and other serious hazards.
  • Massachusetts Store receives $177,800 in OSHA penalties.
  • Stores receive $121,000, $116,200, $143,000 and $121,000 penalties.

An employer need not be a foundry to get hit with big OSHA penalties. Nor do they need to be evil or disinterested in employee safety. I have no reason to think that these employers were bad employers.

Common Restaurant OSHA Violation.

In addition to the earlier mentioned low hanging fruit violations, consider these common issues:

  1. If your restaurant has fire extinguishers, you must either provide Annual fire extinguisher training for all employees, or develop an Emergency Action Plan (EAP) which includes a “Fight or Flight” policy in which you designate some employees to flee and others to receive the simple fire extinguisher training to fight incipient stage fires – or you could take the impractical step of telling everyone to flee even the simple grease fire.
  2. Maintain and enforce effective ”documented” procedures to prevent slippery floors and trip hazards, including nonskid shoes, accountability for controlling kitchen spills, and importantly, the proper floor cleaning materials for the janitorial crew.
  3. Documented job-specific Hazard Communication training, including on-the-job instruction, especially for employees working with commercial dishwashing machines.
  4. Inadequately marked exits, partially blocked exits, or doors that aren’t exits, but look like exits – and are not marked as “Not an Exit.”
  5. Exit doors padlocked inside to prevent pilferage or assure security late at night.
  6. Holes in electric cabinets, emergency lights or fixtures, or unlabeled switches in electrical cabinets.
  7. No consideration of Bloodborne Pathogens issues for employees who may be exposed to vomiting customers.

I hope these reminders are helpful, and if you are one of the fine restaurants that I frequent, or the genius who invented Chick-fil-a chicken minis, thanks for your artistry and hospitality.



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Wow. Newly Released 2017 Drug Test Results are Scary and Employers Need to Act.

It’s deja vu all over again.

Yogi Berra

Since 1988, Quest Diagnostics’ Annual Drug Testing Index has provided the nation’s most accurate information on changes in employee drug use. You should use this data to determine if testing is necessary, what drugs to test for, and the drugs to educate employees about.

I quoted the sage, Yogi Berra because we seem to be revisiting past trends.

Reason 1 – until the last few years, workplace drug issues had fallen off of most employers’’ screens because the positive test rate fell from a whopping 13.6% in 1988 to 3.5% in 2012 – 20+ years of decline. In 2013, they began to rise again, led by a staggeringly fast rise in opiates positivity.

Reason 2 – not only have the 30+ state laws legalizing medical and/or recreational marijuana created practical challenges, new state laws and aggressive Northeastern states’ courts are attacking the until-recently protected right of employers everywhere to require employees to report to work free from the presence of unlawful drugs based upon the Federal criminal Schedule, which treats marijuana as a Schedule-1 illegal drug. So yep, workplace drug issues are back.

Reason 3cocaine use is vigorously rising in some areas … really?! Are we going to have to download and watch old Miami Vice episodes?

From Quest Diagnostic’s May 8, 2018 release of its analysis of 10,000,000 2017 drug test results.

Prescription opiate positivity rate drops by double digits, while cocaine rises by double digits in certain states Methamphetamine positivity skyrockets in Midwestern and Southern United States Marijuana positivity rises considerably in states that recently enacted recreational use statutes, finds national analysis by Quest Diagnostics.

May 8, 2018 Quest Diagnostics Annual Drug Testing Index.

 Rate for Cocaine increased for the 5th consecutive year.

Double-digit year-over-year increases in at least four of the five past years were seen in:

  • Nebraska (91% increase between 2016 and 2017),
  • Idaho (88% increase),
  • Washington (31%),
  • Nevada (25%),
  • Maryland (22% increase), and
  • Wisconsin (13%)

Structure your drug testing and education efforts in these states to recognize that coke is back.

Between 2013 and 2017, methamphetamine positivity skyrocketed:

  • 167% in the East North Central division of the Midwest (Illinois, Indiana, Michigan, Ohio, Wisconsin);
  • 160% in the East South Central division of the South (Alabama, Kentucky, Mississippi, Tennessee);
  • 150% in the Middle Atlantic division of the Northeast (New Jersey, New York, Pennsylvania); and
  • 140% in the South Atlantic division of the South (Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, West Virginia).

Prescription opiates continue decline in workforce testing data.

This is great progress, but the battle has barely started.

“The depth of our large-scale analysis supports the possibility that efforts by policymakers, employers, and the medical community to decrease the availability of opioid prescriptions and curtail the opioid crisis is working to reduce their use, at least among the working public,”

Kim Samano, PhD scientific director, Quest Diagnostics.

Before we lose interest in what many of us think is the worst US Drug problem and potentially devastating for the economy, let’s humanize the statistics.

More Americans die of overdoses than in car crashes and gun homicides combined. In 2016, 64,000 people died due to drug abuse.

  • 23% related to prescription pain relievers.
  • 24% related to heroin.
  • 31% related to non-methadone, synthetic opioids (e.g., fentanyl)

In 2016, over 11.8 million people used heroin or misused prescription opioid pain relievers.

  • In 2015, 919,400 people 25 – 54 years old were not in labor force due to opioids.
  • From 1999-2015, the decline in labor force participation cumulatively cost economy 12.1 billion work hours.
  • During that period, the reduction in work hours slowed real annual economic growth rate by 0.2%, which translates to around $702.1 billion in real output.

American Action Forum (AAF), “The Labor Force And Output Consequences Of The Opioid Crisis” (March 2018).

We must enhance wellness and other efforts to equip employees to deal with these problems in their families.

Costs of Drug Using Employees Generally.

According to one reputable recent analysis, Drug-using employees are:

  • 2.2 times more likely to request early dismissal or time off,
  • 2.5 times more likely to have absences of eight days or more,
  • 3 times more likely to be late for work,
  • 3.6 times more likely to be involved in a workplace accident, and
  • 5 times more likely to file a workers’ compensation claim.

Common sense and experience tells you that these estimates are probably accurate, especially with regard to accidents and workers comp claims.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

  • Reexamination of Rehab, EAP, and Wellness efforts.
  • New “Workplace Drug Education” and training beyond the tired old 1990s “Drugs Don’t Work” efforts.
  • Employee involvement and intervention, similar to efforts to reduce workplace violence, bullying, and harassment.
  • Education and assistance for employees whose families are dealing with drug issues, such as for children.

And Yet, the Societal Trend is to Downplay Drug Usage, at least for Marijuana.

Many of us do not much care what people do in the privacy of their home so long as it does not harm society. In part, because of the new state Marijuana laws and anti-employer court decisions in a few, mainly Northeastern States, one large public retailer announced that they would no longer test applicants. Many high tech employers have lost interest in testing, perhaps because they do not want to lose good high performing employees whose use if after hours (Don’t Ask-Don’t Tell for the drug world). I get it.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

Marijuana’s active elements can affect judgment and higher levels of reflexes days after use, and show no visible signs. I understand the reasons for people to use medical marijuana, but such use can present serious dangers and harm performance … and unlike alcohol impairment is difficult to catch. Drug testing seems essential.

But … and this is a big “but” … employers must review those old drug policies, monitor state laws, and contact their attorney. The answers are neither black and white nor simple. The Legal pitfalls are great. See January 4 & 5, 2018 Posts, Over 30 States have Medical and/or recreational Marijuana Laws.


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