Jottings By An Employer's Lawyer

Tuesday, November 20, 2007

Eight Years in the Making - Employer Pay for PPE

I really haven't digested the details of the new OSHA regulation on personal protective equipment, but here's a link to the final rule: Employer Payment for Personal Protective Equipment; Final Rule.

What I was struck by was the commentary I read elsewhere summarized in this opening paragraph about the history of this regulation (emphasis and bracketed material added by me):

In 1999 [March 31], OSHA issued a proposal to require employers to pay for all protective equipment, including personal protective equipment (PPE), with explicit exceptions for certain safety shoes, prescription safety eyewear, and logging boots (64 FR 15402). The proposal cited two primary reasons for requiring employers to pay for PPE. First, OSHA preliminarily concluded that the Occupational Safety and Health Act of 1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE that is necessary to protect the safety and health of employees. Second, OSHA preliminarily concluded that an across-the-board employer-payment requirement would result in safety benefits by reducing the misuse or non-use of PPE (64 FR 15406-07). Following an initial notice and comment period, an informal rulemaking hearing, a second notice and comment period on specific issues [July 8, 2004], and careful Agency deliberation, OSHA finds that its preliminary conclusions are appropriate and is therefore issuing this final standard requiring employers to pay for PPE, with limited exceptions.

According to an article on the SHRM website, OSHA was managing to make both management and labor unhappy, and finally got a little nudge:

Business-related and organized labor groups have been highly critical of the delay in issuing the final rules. Many employer and work safety groups had complained that OSHA appeared to be dragging its feet and had ignored the pleas of employers to create guidelines that would make it clear who would be responsible for paying for workers’ safety equipment.

Organized labor also criticized the long delay, claiming that the Bush administration was maneuvering to shift costs away from employers and place them on the shoulders of workers. Several proposals to reform federal health and safety laws have faltered in Congress since 1999. Several of the proposed measures included PPE provisions.

In January 2007, the AFL-CIO and United Food and Commercial Workers filed a lawsuit in the federal appeals court for the District of Columbia to force OSHA to issue the final rules. The court has not issued a final ruling on the case. In March, Rep. George Miller, D-Calif., chair of the House Education and Labor Committee, introduced legislation to force OSHA to act on the final regulations.

I know regulations are complicated things, and I really have no knowledge about the background on this, and I am assuming that it is a fairly sizeable cost shift from employers to employees and perhaps the looming inevitablity of such a regulation allowed for that to be taken into account in ongoing pay decisions in the interim, but still -- are we now so partisan, or is our government so inefficient, that we need to take eight years to come up with a regulation?

There may well be answers for that question on this particular regulation, and I welcome any commenters who can shed light on it. But even if there are, there is a nagging sense underlying this post that this is not a good sign for how things should work.


This is typical of Republican administrations. They run for office largely on the plank that government is wildly inefficient and should not be trusted to handle anything of any importance. Then, once elected, they set out to prove they were right.
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Sunday, November 18, 2007

ADA Standard in 5th Cir is "Motivating" Not "Sole" Factor

Deciding a question, that probably few thought was in real doubt, a panel of the 5th Circuit last week joined seven other circuits in setting the proper causation standard for Americans with Disabilities cases. Pinkerton v. Paige (5th Cir. 11/13/07).

According to the Court:

Under a plain reading of the statute, and in accord with the position of other circuits, we conclude that the “sole causation” standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the “motivating factor” test should be applied to ADA claims. This is consistent with the law of most other circuits,33 and it is in line with the causation standard we have applied to similar anti-discrimination statutes.

If there was any surprise in the decision for me it was that it had not been decided before.

Another interesting issue was how the Court came to decide it. The case is brought by an employee of the Department of Education under both §501 and §504 of the Rehabilitation Act. The question was whether the "sole" causation standard of §504 or the "motivating factor" standard of §501 was applicable.

Rather than just deciding that specific question, the Court first held that the §501 standard was the same as the ADA, and then resolved the previously undecided issue in the 5th Circuit. Such a departure from the conservative principle of only deciding the question before you may be what caused Judge Jones to concur only in the judgment.

It was also a good reminder to me that even though I don't do public sector work, I shouldn't ignore or read those decisions too hastily as they often have hidden gems applicable to the private sector when you would hardly expect it. Pinkerton is a case in point.


Interesting that the 5th Circuit took so long to decide this. In the 2d circuit, the "motivating factor" language took hold with the battle between "a" motivating factor and "the" motivating factor taking root. Ultimately, "a" motivating factor seems to be winning out.

But, as a practical matter, I'm not sure it matters to a jury who won't appreciate these subtle distinctions anyways....
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The Unloyal Employee - May End Up Owing a Tidy Sum

That's the lesson to be learned from the 5th Circuit's affirmation of a $3 million dollar jury verdict in a case where two employees were found guilty of breaching their fiduciary duty when they negotiated behind their employer's back to sell the portion of the business in which they were engaged. Navigant Consulting, Inc. v. Wilkinson (5th Cir. 11/15/07).

Interestingly even though the employees in question had non-competes, it was the broad Texas law on breach of a fiduciary obligation that was the basis for the recovery. The trial court had eliminated damages for misappropriation of trade secrets finding it duplicative of the breach of fiduciary claim.

One of the "bad acts" was negotiating and signing a 4 year lease and then using the lease as "leverage" against their employer in attempting to force a sale of the business to them. An additional "bad act" was that they had been negotiating with several buyers to sell the business that they were hoping to acquire.

Navigant Consulting is a good overview of the law in an area where I think we are going to see more litigation.


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Wednesday, November 07, 2007

One of the Better Headlines: Shirking Working: The War on Hooky

Congrats to Business Week for their story and what struck me as one of the more clever headlines in awhile, Shirking Working: The War on Hooky. Among other things the article points out how businesses are going to software analysis to determine when and more importantly why, people aren't showing up for work when they are supposed to.

And as anyone but certain bosses might think, the problem doesn't always lie with the employees. For example:

At one manufacturing company, a group of employees loathed their manager's style. The sentiment went unnoticed by the C-suite until a software program created by Convergys started scouring the department's data and found it had a high absence rate compared with other units. At that point, Convergys performed an "intervention" with the manager's employees: confidential focus groups where the workers could vent. Once the company attended to the problems, attendance rose.

Imagine that.


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