The Next Big HR Trend? Maybe It Should Be More Employee Recognition….

Posted on March 21, 2013 by mavity2012

I apologize for having been missing in action for the last few weeks, but I received the opportunity to take my family to a 400 year old house in Provence; followed by immediate trips to somewhat less glamorous places such as Gary, Indiana, the South side of Chicago and Kansas City.  Blogging wasn’t on my mind.

I have checked other Blogs and new legal developments, and will be providing some blogs over the next few days on topics which my fellow bloggers have overlooked or found less interesting than do I.

in the short run, I am linking to a recent post on TLNT, on a subject which is near and dear to both my flinty lawyer heart and the more enlightened heart of my wife, who is an administrator in a 8000 employee children’s hospital system.  Employee Recognition….

We may laugh at the creative ways some employers recognize employee milestones, but many of these same employers can document not so coincidental declines in discrimination claims and other legal costs.  In my wife’s case, being a children’s hospital, they throw official baby showers for employees every month and take team sports efforts, health fairs and wellness, and holiday recognition to a new level.

Enjoy, The Next Big HR Trend?  Maybe It Should Be More Employee Recognition….

As to results, it’s no surprise that a pioneer in effective employee recognition would also list some of the following awards on its website.  I would suggest that the hospital is simply doing “the right thing,” but I deal with an often hard world, so I’ll pose this question… what’s the dollar value of an improved work atmosphere?

Fortune magazine
Fortune magazine has included Children’s on its elite list of “100 Best Companies to Work For” for eight consecutive years.

Atlanta Business Chronicle
The Atlanta Business Chronicle has named Children’s as one of Atlanta’s healthiest employers and one of the best places to work in Atlanta.

Working Mother
Working Mother magazine has named Children’s as one of the “100 Best Companies for Working Mothers.”

Posted in cultural changes, employer policies, hospitality, recruiting, wellness | Tagged , , , , , | Leave a comment

It’s Wise to Be Cautious: Risks of Unpaid Internships Are Still Increasing

Posted on March 1, 2013 by mavity2012

I saw this post, It’s Wise to Be Cautious: Risks of Unpaid Internships Are Still Increasing,  by one of our wonderful wage-hour guys this morning on the always interesting TLNT site.  As Summer and the  “intern season” approaches, one would be well advised to keep John’s comments in mind.  Enjoy.

Howard

Posted in cultural changes, hospitality, workers comp | Tagged , , | Leave a comment

How to Weigh Obesity In Employment Decisions

Posted on March 1, 2013 by mavity2012

In September, one of my Memphis partners, Jeff Wientraub, wrote a good analysis of legal issues posed by obese workers in HR Professionals Magazine.  While most employers state that an employees weight does not influence their employment decisions, I am not sure that statement is accurate,… and there are legitimate concerns about the employee’s ability to safely perform the essential functions of the job … but is this concern legally defensible?

Read “How to Weigh Obesity In Employment Decisions.”

Read too, my Atlanta partner, Myra Creighton’s August article about concerns raised by a claim and subsequent decision involving obesity.

Don’t get me wrong.  I’m not painting individuals suffering from obesity as villains.  But it is a fact that everyday more Americans join the ranks of the obese, and we are kidding ourselves if we think that this issue will not increasingly come up.  See also my recent post on the need for serious Wellness efforts.

See also, the EEOC’s Press Release on an obesity-related settlement last Spring….

NEW ORLEANS – Resources for Human Development, Inc. (RHD), … The court-approved settlement resolves the charge of Lisa Harrison, who worked as a prevention / intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007.  In its suit, the EEOC charged that RHD violated the Americans With Disabilities Act (ADA) when it fired Harrison because of her disability, severe obesity, even though she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.

During the litigation, the court denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA.  EEOC  v. Resources for Human Development, Inc., — F. Supp. 2d —-, 2011 WL 6091560 (E.D. La. Dec. 2011) (“severe obesity qualifies as a disability under the ADA”).  The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder, rejecting RHD’s argument to the contrary.

The EEOC had offered the expert testimony of a renowned obesity researcher that Harrison’s obesity was the result of a physical disorder or disease, and was not caused by lack of character or willpower.  But the court reasoned that “neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment.”

Posted in ADA, aging workforce, cultural changes, generational differences, wellness, whistleblower/retaliation, workers comp | Tagged , , , , , , , , , | Leave a comment

You Can Win ADA Claims- Show Individualized Analysis and No Knee-Jerk Decisions

Posted on March 1, 2013 by mavity2012

Today, the Eight Circuit handed down a well-reasoned decision in plaintiff’s appeal of its loss in an ADA and State Whistleblower claim. 

A locomotive machinist  was sent for examination and not allowed to return to work after being diagnosed with a degenerative eye disease lacks.

The court concluded that the employer did  not violate the ADA by refusing to allow the employee to return to his job after he was diagnosed with advanced stage retinitis pigmentosa, a degenerative disease causing tunnel vision and night blindness.

The doctor recommended several work restrictions, including that the engineer-machinist could not perform a job with more than a 15 degree visual field, which the employer determined was incompatible with the job’s essential functions. The company explained that work was performed in a “360-degree environment” that featured shifting light and much climbing, bending, and walking on uneven surfaces. They apparently backed their claims with objective evidence and a good job analysis/description; NOT a lot of speculation.

The jury’s verdict was based on evidence that the employee fell on a slick, uneven surface at work a few months before the employer required the eye exam, as well as supervisors’ testimony that co-workers noticed that his peripheral vision seemed limited, and that he even reached for items that were not present.

The medical evidence supported the employer and even the employee’s own physician raised concerns, which is unusual.  Often the employee’s treating physician wants to see his patient employed and strains to argue that the patient can do the essential functions and does not constitute a direct threat.  Kind of refreshing….

FROM THE APPELLATE DECISION:  Hohn chose to see Dr. Dietrich, and although Hohn disputed the restrictions and testified that he was performing tasks that ran afoul of them, Hohn did not offer medical evidence to contradict the restrictions. Hohn’s own medical expert expressed concern about Hohn’s ability to perform any activities that required movement, including operating a crane, “being in a motor vehicle, motorized cart, [or] doing the train.”

The Appellate Court observed that in light of so much evidence,  “a reasonable jury could find that Hohn’s visual impairments precluded him not only from performing the essential functions safely, but from performing them at all.”

The employer chose not to argue the often more difficult-to-prove argument of direct threat and maintained a tight focused defense that the employee could not perform the essential functions of the job.  Nice lawyering and good preparation by the employer. 

The lower court also excluded evidence and resulting confusion by delving unnecessarily deep into the alleged safety failings.  It is nice to see a court acknowledge that the details and even the merits of the safety claims may or may not be a factor or evidence of a valid retaliation claim.  But it’s tough keeping the two lines of analysis seperate.

FROM THE APPELLATE DECISION:  Hohn argues that the safety-complaint evidence is relevant because it would have helped prove that he could perform the essential functions of a locomotive machinist.  He contends that the circumstances surrounding the complaint constituted evidence that BNSF retaliated against him when it required him to submit to a medical exam.

 Specifically, the timing of Hobbs’s decision to withhold Hohn from service coincided with Hobbs receiving notification of Hohn’s complaint and responding to it. According to Hohn, the excluded evidence thus would rebut the evidence that he was withheld from service because his supervisors were concerned about his vision. Instead, he argues that the evidence supports a finding that “BNSF believed he could perform the essential functions of his job without any problems immediately before he was withheld from service.”

 We disagree. The disputed evidence may have helped explain Hohn’s theory that he was withheld from service for reporting a safety violation, but BNSF’s motivation for placing him on medical leave is not necessarily a fact of consequence.  At best, the safety-complaint evidence would have supported an inference of retaliation for withholding Hohn from service.

I quote this discussion to remind you to caution supervisors to be sensitive not only to an employee’s protected status, but any ostensible protected conduct when discharging an employee.  I’m not saying that the discharge should be delayed or not carried out, but more documentation and preparation may be helpful.

These retaliation/whistleblower cases, like so many pregnancy discrimination cases, so turn on “timing” and unfortunate coincidence.  Put simply, often the facts “just look bad.”

The employee also appealed the dismissal of his Nebraska State retaliation claim, arguing that the employer ordered the medical evaluation in April 2004 because during the same month, he had supposedly raised a concern about an unsafe locomotive, and called a railway safety hotline after the supervisors refused to withdraw the locomotive from service. This is the common element of OSHA 11 c or other retaliation/whistleblower claims… point to any comment made about safety around the time of adverse action, and allege a connection.

However, the employee could not link to his opposition to the railroad’s alleged “unlawful act.”   He did not show that but-for his protected action, he would not have been terminated.  However, in reading the decision, it seems as if the employer artfully kept the focus on the separate facts of the employee’s performance issues, and did not allow the alleged protected activity to muddle the facts.

ACTION POINTS…

Read the case and work backwards.  The employer laid out a good case.  They did not engage in knee-jerk behavior. and the often fickle gods of justice smiled on the employer. 

 

 

 

 

Posted in ADA, discipline and discharge, EEOC, whistleblower/retaliation | Tagged , , , , , , , , | Leave a comment

Focus on Wellness: For Our Workers, It’s a Critical Life or Death Issue

Posted on February 28, 2013 by mavity2012

When I started this Blog, I wanted to post analysis and suggestions which were different or more practical than some of the Employment Law, Safety and Labor Articles out there.  I did not want to simply repeat what others were already effectively communicating.   So I have not availed myself as much as I should have of  the great posts out there in the Blogosphere.  I  resolve to do better and post more articles and blog entries that impress me, starting with the article referenced in the title.

The wonderful TLNT HR and more site has a great discussion on the urgent need to address employee wellness, and the increasing roadblocks thrown up by our government (is obesity a disability?).    See also the interesting Wall Street Journal piece, “Should Employees get Insurance Discounts From Completing Wellness Programs?”

It’s that increasing conflict between absolute individualism and personal responsibility.  In case you hadn’t noticed, absolute individualism seems to be winning….

I have blogged on Wellness issues before and linked to some excellent EHS Today articles.  It’s rather obvious that our workforce is getting older, and older employees suffer more work-related and non work-related injuries and illnesses.  Check the sobering statistics in my earlier blog.

And age is not the only challenge.  The increasing youthful obesity is producing  health problems not previously presented by new workers entering the market.

Factor into this ugly mix the fact that it is pretty darned hard to generate fitness and health improvement opportunities for the blue-collar worker coming home from 10 hours of work.

So please read “Focus on Wellness: For Our Workers, It’s a Critical Life or Death Issue,” Check the author’s company (Keas) site as well.   Start working on concrete plans.  The situation will only worsen.

 

Posted in ADA, aging workforce, cultural changes, EEOC, employer benefit plans, employer policies, generational differences, incentive plans, Patient Protection and Affordable Care Act of 2010, wellness, workers comp | Tagged , , , , , , , , , , , | Leave a comment

OSHA Is Only the Appetizer

Posted on February 23, 2013 by mavity2012

 An OSHA Inspection and citations often create the smallest liability associated with a workplace death, serious injury or major accident, but the facts and citations arising from that process will influence subsequent civil and criminal actions.
I spoke a number of times this week to a very good CHRM audience on both Safety and HR topics, including “Criminal and Civil Liability Associated With Workplace Safety.” This topic always gets a good reception if for no other reason than managers and safety/HR professionals want to be darned sure that their actions or negligence don’t put them in the big house with a hulking tattooed felon, who is a member of the lonely hearts club. (Note to readers… watch Shawshank Redemption).
Individual Exposure
Work within the scope of your job duties as a manager or safety/HR professional and it is unlikely that you will ever be found individually liable. No one can guarantee that you won’t be named as a defendant, but your employer will usually defend you, and frankly, don’t lay awake worrying about this issue.  Other more probable problems await your waking and sleeping hours.

However, the fact that it is statistically unlikely that you will be individually named as a defendant and even less likely that you will be found liable, does not mean that you should be oblivious to areas of exposure as you handle safety-related duties or respond to a serious injury, death or catastrophe.

Corporate Exposure

You, the individual, are not likely to be the deep pocket, and you may be a less attractive target than your employer, except when you are viewed by a plaintiff attorney as a back door to go after your employer.

Employers on the other hand are attractive targets even if the plaintiff is unlikely to prevail. Plaintiff counsel may have delusions of grandeur, hope for a nuisance settlement, or sue everyone in the hopes that something will work out. Counsel may sue the employer in order to conduct discovery to learn of other more attractive defendants. In a catastrophic situation, plaintiff counsel may sue your employer just to get their name out there in the hopes of attracting other plaintiffs.
Also, as we will discuss later, an employer is usually protected to a large extent by the “exclusive remedy” principle that holds that an employee’s sole remedy for a workplace injury is the limited damages available under the workers compensation process, except in the case of near intentional bad conduct as defined by that state’s law. That does not mean that injured employees or their families will not try to make this challenge; even though it is often blocked at the motion stage. Likewise, other parties, such as the manufacturer of fire suppression systems involved, or other involved product manufacturers, may try to third-party in the employer.
Add to this stew the fact that on a construction site, accidents and safety challenges often translate to delays and penalties, arbitration or litigation. Likewise, safety may be seized upon in any setting as a way to shift exposure to another party when a deal isn’t going well. Moreover, anytime another company’s employee or a member of the public is affected, the variety of claims and exposure go waaaay up.
Perhaps even more importantly to you, the reader, plaintiffs will try to use OSHA citations and the facts developed in a OSHA inspection as compelling evidence in a later civil or criminal action. There are ways to seek to block all or some of these materials being used, but you should always realize that the OSHA/accident inspection may just be the appetizer to a much larger meal….
Finally, numerous areas of Federal and State criminal provisions can be involved with a catastrophe or other serious safety-related events. Want an example? Follow BP. Consider EPA criminal claims. The EPA has a much more muscular criminal division and claims than OSHA can even dream of. And lots more experience challenging your work product and privilege claims. Recent foundry criminal sentences have involved environmental convictions as the foundation, with obstruction and other OSHA-generated claims then added to bulk up the sentence.
Your greatest criminal exposure from safety-related events may be state and federal claims of obstruction, false statements, conspiracy, mail/wire fraud, etc. Most employers would never consciously commit such offenses, but could you inadvertently create an appearance of such behavior in the context of a chaotic combustible dust explosion or crane collapse?
Here are a few recent headlines to illustrate areas of concern. More explanation later….

Fracking Worker Lawsuit Set for March Trial If Exposure Claims Not Settled in Mediation

A contract gas worker’s federal lawsuit against an energy company and an employment staffing service for chemical exposure during hydraulic fracturing will go to trial March 4 if the parties do not reach an agreement during a court-ordered…

Deliberate Intent Exception – West Virginia workers’ compensation law features an exception to employer immunity for instances of deliberate intent.
The complaint alleges that despite “the unsafe working conditions at the drilling locations, defendants’ knowledge of such unsafe working conditions, and violation of various state and federal regulations, and/or commonly accepted and well-known safety standards in its industry or business, defendants intentionally exposed the employee to those unsafe working conditions.”
Employee Fails to Show Employer Negligence Under Florida’s ‘Virtually Certain’ Standard

An employee was unable to prove that his employer’s negligence caused him to lose most of a hand in an industrial accident because the danger posed by the machine upon which he worked should have been apparent, a Florida state appeals court…

Pipe Maker, Managers Ask Supreme Court To Review Convictions in Forklift Fatality Case

A New Jersey pipe manufacturing company and three of its managers have asked the U.S. Supreme Court to review a federal appeals court decision affirming their criminal convictions for violations of worker safety laws and environmental standards… The company and its managers also were charged with a broad conspiracy to violate the Clean Water Act and the Clean Air Act and to defraud OSHA and the Environmental Protection Agency, to make false statements, and to obstruct an OSHA proceeding.

NEW YORK—A Rochester contractor has been sentenced to six years in prison for his conviction on charges of violating Clean Air Act asbestos work standards and making false statements to an Occupational Safety and Health Administration inspector …. Smith ordered his company’s salvage workers to tear out copper pipes, ceiling tiles, and scrap metal from the west wing of the hospital complex….
The workers, prosecutors said, had little education or English comprehension. Some had no training in asbestos removal and did not know they were being exposed to asbestos while removing the copper pipes, prosecutors charged.
Prosecutors said evidence at sentencing showed that when workers questioned Smith, he lied and told them the areas did not contain asbestos. He also lied to an OSHA inspector investigating allegations of illegal asbestos removal at the site in September and October 2007.

BNA Special Report – Asbestos Litigation Enters Sixth Decade With New Approaches to Old Problems
As asbestos litigation enters its sixth decade, plaintiffs’ attorneys continue to find new ways to frame their lawsuits, new parties to sue, and new exposure victims to represent….
Three theories show up regularly in current asbestos litigation: The “every breath” theory of causation, take-home exposure, and “bare metals” claims. Another theory, apparent manufacturer doctrine, has been raised in a few jurisdictions, and could be the next frontier of asbestos litigation. …. “The endless search for a solvent bystander” forces plaintiffs to get more and more creative.

Whistleblowers – Ruling Against AT&T on Disciplinary Policy On Injuries Seen Yielding More Complaints

A ruling that the AT&T Inc. disciplinary policy for service technicians violated federal and Michigan prohibitions against punishing workers who report injuries is expected to open the door for others to file complaints ….

Some Claims in BP Fraud Class Action Over Deepwater Horizon Project May Proceed

Some claims by investors in a securities fraud class action against BP plc and its former executives are allowed to proceed by the U.S. District Court for the Southern District of Texas in litigation over alleged misrepresentations made about…

Occidental Chemical Liable for Negligent Design of Device in Facility It Once Owned

Occidental Chemical Corp. is liable for the negligent design of a device that partially blinded a worker at a facility that the company no longer owned or operated at the time of the accident, a Texas appeals court ruled Feb. 14 ….
(As word of thanks,… most of the headlines are from recent BNA publications. I strongly recommend their employment, labor and safety reports).

Posted in civil and criminal exposure, combustible dust, construction, government inspections, litigation, OSHA | Tagged , , , , , , , | Leave a comment

Response to Another NLRB Social Media Question.

Posted on February 21, 2013 by mavity2012

As is often the case, we received hordes of fact-specific questions about what policies are being challenged by the NLRB, and what language has been approved regarding professional behavior, use of social media, courtesy and privacy. 

I am tempted to answer… (1) everything, and (2) beats me.

I can also provide that hated lawyer answer, “each situation is very fact-specific,” which unfortunately is true.

Some of my earliest posts listed various policies found objectionable or acceptable.  We are not sure what effect the DC Circuit decision finding the current board unlawful will have, but there are many decisions and NLRB Fact Sheets  (three NLRB Reports are online) to review for examples.

In response to requests, here is a re-typed version of one policy that the NLRB  found lawful in a specific situation.  DO NOT COPY AND USE THIS POLICY.  Remember my fact-specific remark!  We provide this only as another piece to consider in crafting your policies.

These are areas where counsel really is need.  I’m serious.

________________________________________________

Social Media Policy

Updated: May 4, 2012

At [Employer], we understand that social media can be a fun and rewarding way to share your lifeand opinions with family, friends and co-workers around the world. However, use of socialmedia also presents certain risks and carries with it certain responsibilities. To assist you inmaking responsible decisions about your use of social media, we have established theseguidelines for appropriate use of social media.This policy applies to all associates who work for [Employer], or one of its subsidiary companiesin the United States ([Employer]).Managers and supervisors should use the supplemental Social Media Management Guidelines foradditional guidance in administering the policy.

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things.  Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

 

The same principles and guidelines found in [Employer] policies and three basic beliefs apply toyour activities online. Ultimately, you are solely responsible for what you post online. Beforecreating online content, consider some of the risks and rewards that are involved. Keep in mindthat any of your conduct that adversely affects your job performance, the performance of fellowassociates or otherwise adversely affects members, customers, suppliers, people who work onbehalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinaryaction up to and including termination.

 

Know and follow the rules

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer]Information Policy and the Discrimination & Harassment Prevention Policy, and ensure yourpostings are consistent with these policies. Inappropriate postings that may includediscriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawfulconduct will not be tolerated and may subject you to disciplinary action up to and includingtermination.

Be respectful

Always be fair and courteous to fellow associates, customers, members, suppliers or people whowork on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open DoorPolicy than by posting complaints to a social media outlet. Nevertheless, if you decide to postcomplaints or criticism, avoid using statements, photographs, video or audio that reasonably

could be viewed as malicious, obscene, threatening or intimidating, that disparage customers,members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation orposts that could contribute to a hostile work environment on the basis of race, sex, disability,religion or any other status protected by law or company policy.

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if youmake a mistake, correct it quickly. Be open about any previous posts you have altered.Remember that the Internet archives almost everything; therefore, even deleted postings can besearched. Never post any information or rumors that you know to be false about [Employer],fellow associates, members, customers, suppliers, people working on behalf of [Employer] orcompetitors.

 

Post only appropriate and respectful content

 

Maintain the confidentiality of [Employer] trade secrets and private or confidentialinformation. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports,policies, procedures or other internal business-related confidential communications.

 

Respect financial disclosure laws. It is illegal to communicate or give a “tip” on insideinformation to others so that they may buy or sell stocks or securities. Such onlineconduct may also violate the Insider Trading Policy.

 

Do not create a link from your blog, website or other social networking site to a[Employer] website without identifying yourself as a [Employer] associate.

 

Express only your personal opinions. Never represent yourself as a spokesperson for[Employer]. If [Employer] is a subject of the content you are creating, be clear and openabout the fact that you are an associate and make it clear that your views do not representthose of [Employer], fellow associates, members, customers, suppliers or people workingon behalf of [Employer]. If you do publish a blog or post online related to the work youdo or subjects associated with [Employer], make it clear that you are not speaking onbehalf of [Employer]. It is best to include a disclaimer such as “The postings on this siteare my own and do not necessarily reflect the views of [Employer].”

 

Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it iswork-related as authorized by your manager or consistent with the Company Equipment Policy.Do not use [Employer] email addresses to register on social networks, blogs or other online toolsutilized for personal use.

 

Retaliation is prohibited

[Employer] prohibits taking negative action against any associate for reporting a possibledeviation from this policy or for cooperating in an investigation. Any associate who retaliatesagainst another associate for reporting a possible deviation from this policy or for cooperating inan investigation will be subject to disciplinary action, up to and including termination.

 

 24

Media contacts

Associates should not speak to the media on [Employer’s] behalf without contacting theCorporate Affairs Department. All media inquiries should be directed to them.

For more information

If you have questions or need further guidance, please contact your HR representative.

 

 

Posted in employer policies, harassment, NLRB, union organizing, unions, whistleblower/retaliation | Tagged , , , , | Leave a comment

Fed-OSHA . . . Coming To A State Near You?

Posted on February 21, 2013 by mavity2012

The OSHAct provides that a State may operate its own OSHA program so long as the program is “at least as effective as Fed-OSHA’s program.” As a result, there are 27 State-OSHA Plans. Some of the Plans are quite good.

Traditionally, Fed-OSHA has largely left State-OSHA programs alone. In 1988, the California Governor briefly turned over the administration of Cal-OSHA to Fed-OSHA “to save money.” Fed-OSHA briefly took over NC-OSHA after a terrible poultry plant fire in 1992.  NC-OSHA is now a fine organization.

However, the current Administration appears to prefer a more centralized approach in which State OSHA Plans dutifully follow all Federal direction. In response, the State OSHA  Plan Association has regularly aired its disagreements with Fed-OSHA’s more enforcement-driven and/or centralized approach. State Plans may feel that their approach is more effective than the tone or strategy pursued by Fed-OSHA.

One of Fed-OSHA’s early efforts in 2008 was to establish a monitoring office and to “assist” Nevada-OSHA after the City center experience and the Las Vegas Sun attacks on Nevada OSHA (which is actually a good organization). Fed-OSHA then began a more in-depth approach to Federal Annual Monitoring and Evaluation (FAME) review of all State Plans, often culminating in critical annual reports. As an example, see the March 31, 2011 Inspector General Reports and OSHA Response to the OIG. OSHA held a Stakeholder Meeting in June 2012 to discuss State Plan effectiveness.

And in September 2012, Hawaii and Fed-OSHA signed a voluntary agreement for Fed-OSHA to take over inspection of general industry and manufacturing businesses after state leaders said that budget cuts and personnel turnover had felt the State Plan was unable to meet its obligations. This agreement runs through 2015.

Arizona OSHA and Residential Fall Protection

Now we witness the standoff between Fed-OSHA and Arizona OSHA (ADOSH) regarding Residential Fall Protection. Fed-OSHA first challenged ADOSH’s approach to residential fall protection during the FAME Review.  ADOSH follows a State Law and not OSHA’s revised Residential Fall Protection Directive.

On December 7, 2012, Fed-OSHA served on ADOSH, a three allegation Complaint About State Program Administration (CASPA). Fed-OSHA concluded that one item had merit; ADOSH’s alleged failure to implement OSHA Directive STD 03-11-002, Compliance Guideline for Residential Construction. Fed-OSHA asserted that ADOSH’s enforcement of  Arizona SB 1441  does not protect workers in residential construction between 6 and 15 feet.

ADOSH defended itself with a December 11 response that its application is equally effective. ADOSH asserted further that Fed-OSHA has not identified objective criteria to measure the effectiveness of a State Enforcement Program. ADOSH concluded its detailed response by stating that “ADOSH does not anticipate taking further action at this point.”

The proverbial ball is in OSHA’s court. As threatened, will Fed-OSHA now take over ADOSH’s inspection of residential construction?

IS the ADOSH Dispute an Isolated Instance or Part of a trend?

The conventional wisdom has been that the current Fed-OSHA Leadership wants State OSHA Plans to march in lock step with Fed-OSHA, but does not want to take over programs because of practical and legal challenges.

The interesting question, though, is, how far will Fed-OSHA go to impose more control over State Plans?

The ADOSH dispute is arguably a straightforward challenge to Fed-OSHA, and a number of groups, such as the Arizona ASSE, and various employers also disagree with Arizona’s position.   The important question is whether Fed-OSHA will increasingly roll up its sleeves in confronting State Plans on less clear challenges?

We would suggest that employers monitor this situation and any possible trend.  This is not an arcane safety nerd subject, as those of you with operations in many states may realize.

Employers should also learn the differences in how  State Plans operate. Even within the Federal system, Regions and Area Offices take different approaches.  moreover, some State Plans have different reporting requirements or Contest procedures.

Posted in construction, government inspections, OSHA | Tagged , , , , , , , | Leave a comment

Attractive Women! Retaliation Claims! Social Media! Mixed Drinks! In a Wage-Hour Case?

Posted on February 19, 2013 by mavity2012

Ok… I admit to sounding like a British tabloid writer.  However, how often can one discuss a Fair Labor Standards Act (FLSA) case set in an upscale bar,  involving allegations of retaliation and threatening social media posts?  I suspect that wage-hour lawyers dream of such cases.

Thanks to my friend and esteemed lawyer/blogger, Eric Meyer and his post on this recent case:

 Manager’s drunk Facebook threats + Boss’s Buddha blogging = retaliation claim?

You should read Eric’s Blog entry, but one immediate lesson is not to Blog about current or ex-employees who sue or make other claims against the employer. 

Allegedly, a supervisor posted the following deeply philosophical musing on a frequently viewed Facebook page:

Wednesday, May 11, 2011

“By the way Lil, you should be getting served with a lawsuit. No worries just sign for it”. This particular case will end up pissing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances!
I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously , I am still a very new Buddhist cause my thoughts are ” f ***(author revisions) that bi***”. Let me do my breathing exercises and see if any of my thoughts change. Lol

The complaining employee subsequently claimed that the individual’s posted status then seemed like a threat to her.  The following status may look to you like a foolish snarky comment, and not a real threat.  However, when one makes such a statement, one should consider the law of unintended consequences… such as a retaliation claim! 

     Dear God, please don’t let me kill the girl who is suing me.  That’s all.

The plaintiffs haven’t won yet, and may well lose.  However, in February, the Federal Court dismissed the employer’s Summary Judgment Motion.  My read of the situation?  the employer may win because of various legal arguments, but the behavior was enough to get past summary judgment and to a jury.  In lawyer-speak, “this is not good.”  Well, it is good from a standpoint of someone earning fees, but I suspect that both the defense counsel and the employer would prefer to have this embarrassing matter done with.

Lessons Learned…

1.     An employer can NEVER remind employees too many times that they must be prudent about what they e-mail or post at work and at home.

2.     As I have emphasized in my frequent Blogs about OSHA Retaliation Claims, Workplace Violence, Threatening Employees and other concerns, retaliation and whistleblower claims are exploding.  Make sure that supervisors are aware of the many types of protected workplace conduct.

3.     Use this opportunity to remind supervisors to never discipline or counsel employees in anger or in a knee-jerk fashion.  Tell them to pause, think through the facts and consider the employee’s personality, past history, and other factors… and then act.

4.     before you fire an employee for such electronic behavior or set out broad new social media rules, review the current state of the law, including the NLRB’s positions.

5.     What’s my favorite closing admonition?  Never assume that this stuff could not occur in your workplace.

Posted in discipline and discharge, EEOC, employer policies, government inspections, hospitality, social media, wage hour, whistleblower/retaliation, workplace violence | Tagged , , , , , | Leave a comment

Workplace Violence Complaints Against a Nevada Assembly Member Illustrates Trends

Posted on February 15, 2013 by mavity2012

I suspect that Nevada residents wish that the saying “What happens In Vegas stays in Vegas” applied to the embarrassing saga occurring in their State Assembly.

My reason for starting this Blog was to have a way to alert clients about trends and patterns involving OSHA and employment law concerns.  One of my primary themes has been employees increased recognition of their “rights,” and their willingness to complain about their violation, or for any perceived retaliation against them for making complaints.  These attitudes have contributed to both the explosion of whistleblower claims and to  new employee concerns.

Add To the Mix,  Concern About Workplace Violence

Probably because of the focus on the Newtown school tragedy and the current debate about how to deter public violence, we are now seeing  an increase in claims asserting that the employee was retaliated against for complaining about the threat of workplace violence,  including by the boss himself.  Hopefully you read my recent post about “Cussing Your Employees Can Get You Sued By OSHA.”  Similarly, this week saw an OSHA whistleblower suit against a Montana Dairy Queen for allegedly firing an employee for complaining about fears of workplace violence.

Fears of Workplace Violence + OSHA = a Nevada Assembly Member

Well not exactly, but the bizarre events unfolding in Nevada provide insight into the increasing complications posed by employee safety concerns, and the rise of workplace violence as one of those concerns.  Employees in The State Assembly  complained to Nevada OSHA that an Assembly member posed a threat.  OSHA sent a Complaint Letter and the Nevada Assembly responded with a four page letter.   

From the Nevada Appeal:

The response by (the Assembly) came just hours before Assembly Majority Leader William Horne announced that Brooks had been banned from the building pending resolution of the situation — a move that helps resolve the complaint. Combs said officers met Brooks at the Reno-Tahoe Airport on Monday night when he arrived from Las Vegas and served him with notice he was no longer allowed in the Legislative Building.

In his response to OSHA, (the Assembly) said the case isn’t like most other complaints about an employee being a danger to co-workers.

“It is important to recognize that Assemblyman Brooks is an elected official and not an employee of the LCB or of the Nevada Assembly,” he wrote. “Therefore, he cannot be fired, suspended or otherwise disciplined in the same manner as an employee.”

Brooks understands that some employees are concerned about reports of his behavior and voluntarily agreed to certain measures to ease those concerns, Combs said. Those, according to the letter, are that a Legislative Police officer accompany him when he is in the building. His key-card has been deactivated so he can’t enter the Legislative Building after hours without contacting Legislative Police.

Action Points

1.     Read the Nevada new sites… much better than those horrid reality TV shows!

2.     Review your job sites for workplace violence concerns, especially if you are in healthcare, 24-hour settings such as convenience stores and hotels, or if you send employees to work alone at remote job sites or at customer locations.

3.     Take seriously employee concerns and complaints, even if they may seem unreasonable.  Professionally respond to them.

4.     If the complaint is wacky, then be careful.  You may have an employee on your hands who won’t accept your answer and may tempt you to fire them.

Posted in cultural changes, discipline and discharge, emergency response, generational differences, government inspections, harassment, hospitality, workplace violence | Tagged , , , , | 1 Comment