Howard’s Weekly Wrap Up – February 4, 2018

Mercifully, last week was not filled with big legal developments, so we’ll visit a few practical observations on safety compliance and managing OSHA Inspections.

Because safety professionals in particular, and managers in general, need to know more than their narrow discipline, we’ll continue talking about other employment law developments which affect safety and other business areas.

 

The Week’s Labor, Employment Law and OSHA Legal Developments.

 

Practical Observations.

  1. Flu and Wellness – As if the news has not been bad enough, the seriousness of this year’s Flu and flu-like illnesses was brought home to me this week when I ended up in the hospital with pneumonia or pneumonia-like virus. I was surprised that as I talked to clients this week, several of them volunteered a similar experience with recurrent attacks of “flu” or “sinus infections,” rounds of medicine and then something worse. For one take, read this article Flu symptoms similar to adenovirus: What is adenovirus? 
  2. We’ve already pasted previous articles about responding to flu in the workplace, and the key points remain the same – employers, perhaps through their Wellness Programs, should emphasize the flu vaccine, washing hands, getting sleep, and staying home when sick. Add to those points, the need to educate employees about the seriousness and variations of this year’s Flu season. Good article from EHS Today, How to Keep the Flu from Breaking Out in Your Plant.
  3. Signing OSHA Witness Statements – our Workplace Safety Practice Group emphasizes forthright and professional dealings with OSHA and other government agencies, but that does not mean that employers should fail to exercise their legal rights in responding to and managing an OSHA or other government investigation. It’s the duty of a government investigator such as an OSHA Compliance Officer, to build a file to support the elements required to make out the violations that the CO believes occurred. It is not the employer’s job to help make out the elements of a violation, especially when the CO may be wrong. Section VII.A. of the OSHA Field Operations Manual (FOM) notes the purpose of Witness Statements and that signature is voluntary:

Interview statements of employees or other individuals shall be obtained to adequately document a potential violation.

Statements shall normally be in writing and the individual shall be encouraged to sign and date the statement.

The short time period in which OSHA must complete its investigation and the understaffed realities of OSHA mean that citations issued, upon further more detailed analysis, may not satisfy the elements necessary to sustain a citation before a Judge. Without exceptions, when employers contest and go through the litigation process, additional facts come out and they often help the employer.

Section VII.B. of OSHA’s FOM expressly notes that statements are useful where problems may later occur:

CSHOs shall obtain written statements when:

  • There is an actual or potential controversy as to any material facts concerning a violation;
  • A conflict or difference among employee statements as to the facts arises;
  • There is a potential willful or repeated violation; and
  • In accident investigations, when attempting to determine if potential violations existed at the time of the accident.

Therefore, an employer has to ask  why it should encourage supervisory employees to sign a Statement prepared by the investigator. Investigators generally try to accurately set out the witness’ statement but they are trying to establish a case – statements are never completely neutral. Even more importantly, witnesses often sign statements that they later realize were inaccurate or that they did not thoughtfully consider. For the same reasons, management-side attorneys often take only sparse strictly factual statements or do not get a signed statement early in an investigation.

Once the statement is in writing and signed – accurate or not – it will be used against the employer. So, while we wholeheartedly agree with an employer’s desire to fully cooperate, we generally recommend against supervisory employees signing a statement. Unlike non-supervisory employees, the supervisor can bind the company. They are your agent.

Non-supervisory employees are a different matter – it’s the employee’s decision and an employer should not interfere in any way with an employee signing a statement. Nothing more effectively destroys trust between an employer and investigator than even an appearance of discouraging employees from cooperating in an investigation. The sensitivity of managing hourly employee interviews is one reason why employers may later regret failure to consult with counsel.

Podcasts.

Mentorship – This podcast shares a fascinating story of an immigrant’s success, and the importance of his mentors. We talk mentorship but often are not purposeful in our efforts. The Model Health Show TMHS 265: Creating Fit Bodies, Successful Mentorship and the Truth about Discipline – With Bedros Keuilian

Wellness and Healthcare – One doesn’t expect to learn about advances in stem cell therapy from a podcast including Mel Gibson, but this episode from the colorful Jo Rogan Experience podcast, with Dr. Neil Riordan provides a matter of fact update on efforts which may soon influence health and the burgeoning costs of taking care of an aging and less healthy workforce.

Input from Readers.

Lisa McGlynn is an outstanding attorney in our Tampa FP office and a regular speaker in the Tampa Bay and Central Florida areas, with a special interest in issues posed by medical marijuana. Lisa is also active in Fisher Phillips’ WILC, Women’s Initiative and Leadership Council efforts both internally and with clients and other attorneys. Please check out the WILC events hosted by our various offices. She also blogs regularly on our Gig Employer Blog. Lisa is smart and good on her feet. She recently sent me the following observations:

One recent interesting development of interest to me is that Vermont became the 9th state to legalize recreational use marijuana and the 1st state to do so via the legislature.  The stark difference between the states and the federal government on this issue continues to be confusing to employers.Although also not new, like many others, I related to Hillbilly Elegy. Many of our families’ histories may be a bit more “hillbilly” than elite, so it was of particular interest to me and those with whom we deal.

Although it is not a new book, I recently read that may be of interest to business readers is the Gift of Fear by Gavin de Becker.  https://gavindebecker.com/resources/. The book encourages readers to trust their instincts about situations and individuals, as well as giving specific helpful advice (such as the fact that liars often use too many details).  It covers many different scenarios (stalking, dating violence, etc.) but it has a whole chapter specifically on workplace violence thatwas fascinating.  In fact, whenever I have given a talk on workplace violence issues since reading the book, I mention it to the audience because I really think it is worth a read.

Movies.

The Alienist – TNT’s new series shows promise. While not necessary, one may enjoy the show more if they have read Caleb Carr’s excellent book, _. The first episode seemed a bit poorly edited and did not have the big picture-feel we have come to expect from the great new series starting with Game of Thrones. However, the show found its pace in the second episode with solid performances and an engaging plot. However, what wowed me was the extraordinary recreation of the Guilded Age New York City through CGI and attention to detail in sets and costumes. Wowed me.

Britannia –   https://en.wikipedia.org/wiki/Britannia_(TV_series) This joint effort with Britain’s Sky Atlantic . and Amazon Prime is a bold and sometimes hallucinogenic effort to capture the mysticism and gritty details of the second Roman conquest of Britannia and its fierce Druid worshipping natives. The effort is rather unique and interestingly, some recent archaeological finds may overshadow the show. The acting is excellent and it’s a damned unusual effort. Warning – like GOT, no actor is safe, so don’t get too attached.

Howard

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in books and articles, government inspections, management and leadership, OSHA, podcasts/thought leaders, Uncategorized, wellness, workplace violence and tagged , , , , , , , . Bookmark the permalink.

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