- Changes in Federal Enforcement
- OSHA may apply 82% penalty increases back to inspections begun in February
- State Laws and Bathroomgate
- A Major Change in Attitude towards Workplace Violence
- More and serious EEOC process changes
- Recent EEO Decisions where Employers Got it Right (or Wrong)
- Zika Will be Bigger Problem than Ebola
- Management and Self Help
We’ll get back to all short blurbs in the next volume.
Big changes in Federal law without new legislation … through Interpretations and Regulations.
In my 32 years of practice, I have never seen a busier lame duck period. The Administration is determined to change as many laws as possible before the clock runs. This Administration aggressively using interpretations, directives, changes in enforcement posture, and new regulations to change decades of precedent under the National Labor Relations Act, OSHA, and other Federal Regulatory schemes.
I’m not approving or criticizing the Administration’s new rules on corporate taxes and inversions, but as this April 7 Wall Street Journal Article explains, these rules are a good example of how the Administration is abusing the system to make laws which should normally go through a legislative or rulemaking process. See also an April 8 Wall Street Journal Article on more regulatory changes to come. What’s next? As we discussed in our last update, the Administration released the proposed Silica and persuader rules, as well as new NLRB interpretations. Lawsuits in at least six US Circuits have been filed to challenge the Silica rule and a number against the Persuader rules.
Action Point: Begin testing and determine if you are in compliance with current OSHA Silica levels.
We expect to soon see the federal Wage Hour overtime changes, which will affect a huge number of employers.
Action Point Analyze as your lower level management positions and determine the extent to which you may lose overtime exemption for positions as they are currently structured and paid. We’re glad many employers have started reviewing whether some employees genuinely are exempt from overtime, but as John Thompson points out in a recent post, be wary of complete reliance on the “Checklists” floating around.
We also expect to soon see the release of OSHA’s new Electronic Recordkeeping Rule. Employers need to be aware that the requirements will for the first time define an “enterprise,” and the proposed broad definition would basically treat any entity which the employer owns 51% to be the same company for OSHA purposes, such as determining Repeat citations:
One possible measure of ownership or control is the enterprise’s percentage of ownership of the establishment. In this case, the definition could be “for the purposes of this section, if an enterprise has an ownership share greater than 50% in an establishment, it is considered to have ownership or control of that establishment.” For example, if Corporation A owns a majority of the stock of subsidiary Corporation B, the establishments owned and operated by Corporation B would be considered part of the Corporation A enterprise.
OSHA is also seeking to change the Court decision prohibiting OSHA from citing employers for recordkeeping errors more than six months old by new Rulemaking. Thought that one had gone away, didn’t you?
Consider also how OSHA is broadening the scope of some inspections under certain Emphasis Programs.
New Wrinkle on OSHA’s planned 82% Penalty Increase in August, 2016.
OSHA now says that it may apply those higher penalties to inspections commenced as far back as in February 2016 if the citations are issued after the penalty increase. See post on OSHA’s Enforcement page.
Lots of New State Laws.
Read my piece on minimum wage changes in the New York and California. New state minimum wages may occur in states such as Massachusetts and New Jersey. I’ve also been shocked at the attention given the now infamous North Carolina Bathroom Law. Our latest update on Bathroomgate explains that the NC changes do not much affect employers, although as I explained in a recent Wall Street Journal piece, the law did have a side effect of making it harder for NC plaintiffs to use NC state antidiscrimination law on race, sex and other protected classes. Despite the lack of clear Federal protections, since the EEOC’s 2015 Lusardi decision involving a Transgendered employee, the EEOC has made it clear that they will pursue LGBT actions. EEOC site.
Action Point: Regardless of one’s views, one message is to refine anti-bullying efforts. I’m not very politically correct, but there’s nothing liberal about preventing targeted and relentless teasing and bullying. I’ve seen bullying cause far too many discrimination and hostile environment claims.
Also, in California:
The “New Supreme Court Case On Sitting During Work.”
“San Francisco’s New Paid Parental Leave Law”
A Major Change in Attitude towards Workplace Violence
We just completed the second of two Fisher & Phillips webinars including panelists and contributors who were active and former Department of Homeland Security, Secret Service, and other law enforcement professionals. We solicited questions and concerns from employers and used the panel discussions and preparation to develop a more effective practices to prevent and respond to workplace violence. (March 29 archived webinar part 1)
Although interest spikes after every mass shooting, employers have not done much more than update their written workplace violence policies. Most of these policies are simply statements in employee handbooks and include generalized provisions. Likewise, while many employers now show their employees the DHS “Run, Hide, Fight” video on how to respond to an active shooting, employers have not increased training or revised evacuation programs, emergency action plans or emergency response plans.
An attitude change is required. While it is still unlikely that your workplace will experience a mass shooting, the frequency of such events is rapidly increasing. Such events can destroy a business. Similarly, less serious instances of workplace violence occur hundreds of thousands of times per year.
Some of our conclusions are as follows:
- No checklist will identify every employee prone to workplace violence or a mass shooting. The best approach is to encourage employees to raise concerns about coworkers. Postmortem reviews often show that coworkers were aware that something was not quite right with an employee or that an employee was going through domestic abuse or another situation which might introduce violence to the workplace.
- Think you can spot the potential workplace shooter? Consider the following myths …
Myth 1: There is a profile of “the shooter…”
Fact: Shooters and non-lethal approachers do not fit one descriptive or demographic profile or even several descriptive or demographic profiles.
Myth 2: Workplace shooting is a product of mental illness or derangement.
Fact: Mental illness only rarely plays a key role in an assassination event.
Myth 3: The persons most likely to carry out threats are those who make direct threats.
Fact: Persons who carry out attacks often do not make threats; especially direct threats.
From US DOJ – Protective Intelligence and Threat Assessment Investigations (1998).
- Encourage employees to tell management if they have obtained a restraining order against someone or if they are involved in a domestic abuse situation. Once the employer solicits this information, they also accept a duty to take some sort of reasonable action. However, the alternative may be to be featured in the next day’s news.
- We must train supervisors to get serious about dealing with bullying and workplace rage and anger. It is better to deal with employees before their bad behavior festers. Moreover, bullied employees may claim that their mistreatment was based upon sex, national origin or other characteristic, and raise hostile environment claim.
- Strengthen Workplace Violence, Workplace rage, No Harassment, No Bullying, and Complaint procedures.
- Proactively deal with concerns about guns in the workplace. All of the safety professionals with whom we conferred do not support employees bring their guns to work. Law enforcement professionals are worry about employees who have not received law enforcement training using hand guns in the workplace. Similarly, law enforcement officials worry about shooting or being shot by an employee who has a gun when the officers respond to a crime situation.
Action Point: Employers will have to evaluate state laws dealing with employer rights to carry guns in the workplace. Different standards may apply to guns retained in employees’ vehicles in parking lots.
- An attitude change is required in evaluating the hard security of the workplace. Many businesses object to the thought of blocking access from the lobby or placing receptionists behind a high counter or Lexar window. However, employees need to engage in a realistic risk analysis and determine appropriate steps.
The above points are just some of the lessons from this ongoing process, and even these recommendations should be applied and on a case-by-case basis.
We strongly encourage employers to contact their F & P counsel about revising various policies and obtaining resources in evaluating their unique security issues.
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.
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:
- Recognize that the number of people affected is still relatively small but the effects are terrible.
- Start tracking developments NOW before a crisis occurs, which would be different than our usual responses to Pandemics and threatening diseases.
- Evaluate your workplaces for exposure to mousquitos, develop responses and begin training.
- 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.
- 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.
- Check these OSHA West Nile Guidelines going back to 2012. Here’ a sample of simple OSHA recommendations from its west Nile Quick Card:
Preventing Mosquito Exposure
Reduce or eliminate mosquito breeding grounds (i.e., sources of stagnant or standing water).
Cover as much skin as possible by wearing long-sleeved shirts, long pants and socks when possible.
Avoid use of perfumes and colognes when working outdoors.
Use an insect repellent containing DEET or Picaridin on skin that is not covered by clothing.
Choose a repellent that provides protection for the amount of time that you will be exposed. The more DEET or Picaridin a repellent contains, the longer time it can protect you.
Spray insect repellent on the outside of your clothing (mosquitoes can bite through thin clothing).
Do NOT spray insect repellent on skin that is under clothing.
Do NOT spray aerosol or pump products in enclosed areas or directly on your face. Do not allow insect repellent to contact your eyes or mouth. Do not use repellents on cuts, wounds or irritated skin.
After working, use soap and water to wash skin and clothing that has been treated with insect repellent.
Be extra vigilant from dusk to dawn when mosquitoes are most active.
Educate employees, including those employees traveling overseas.
Additional Relevant Information
“Effect of El Niño is for a hotter & wetter South East The makings of a Zika perfect storm in the Northern hemisphere.” Dr. Neil Bodie
New survey on American attitudes toward Zika virus finds limited awareness or concern http://scienmag.com/?p=1463041
Management and Self Help
Solid analysis of who defines culture in a workplace http://www.benefitspro.com/2016/03/25/who-creates-a-companys-culture?ref=hp-news&slreturn=1459178880