Jottings By An Employer's Lawyer

Friday, July 23, 2010

The Difference Between Cloth and Leather Gloves? Just Over a Million Dollars

At least that is the thought one might take from a jury verdict at the end of May in Maine state court. As reported by Michael Afthim's counsel, Peter Thompson and Associates in their blog, Maine Employment Lawyer, his complaints about the working conditions of the men he supervised led to his termination and subsequent suit under the Main Whistleblowers' Protection Act.

According to his counsel:
Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift.

A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.

With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.


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Some Facts on Breast Feeding Requirement Under Healthcare Bill

A hat tip to Employment Law 360 for their story, DOL Releases Guidelines On Breaks For Breastfeeding [pdf] ($) and inclusion of Fact Sheet #73 from the Wage and Hour Division, Break Time for Nursing Mothers under the FLSA.

It's the first official word I have seen on a provision contained in the major healthcare reform bill passed earlier this year, that was scant on details.

I am not sure this answers all the questions, but at least it's a start.


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Tuesday, July 20, 2010

One Stop Shopping for Whistleblowers

A hat tip to Today's Workplace, the blog of the Outten & Golden firm, for their link to OSHA's new whistleblower website, Office of the Whistleblower Protection Program.

It is worth its weight in gold, if for no other reason than to find a link to all 18 statutes that OSHA currently is responsible for:
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. §660

Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105

Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §2651

International Safe Container Act (ISCA), 46 App U.S.C. §1506

Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i)

Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367

Toxic Substances Control Act (TSCA), 15 U.S.C. §2622

Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971

Clean Air Act (CAA), 42 U.S.C. §7622

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9610

Energy Reorganization Act (ERA), 42 U.S.C. §5851

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121

Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes Oxley Act (SOX), 18 U.S.C. §1514A

Pipeline Safety Improvement Act (PSIA), 49 U.S.C. §60129

Federal Rail Safety Act (FRSA), 49 U.S.C. §20109

National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142

Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2087

Section 1558 of the Affordable Care Act (ACA), P.L. 111-148
The statutes are up to date through the health care bill, but don't yet include those included in the Financial Reform Act which will not be signed into law until tomorrow. For a preview of those, which I am sure will be joining the list soon, see my earlier post, Financial Reform Passes - Major Whistleblowing Changes as Well.

And for two final tidbits, before the next OSHA investigation into a whistleblower complaint, you might want to look over the 190 page Whistleblower Investigations Manual and when you get ready to settle check out OSHA's policy for Approval of Settlements with Future Empoyment Waivers. Spoiler alert, it's on a case by case basis and they look at five factors.


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As ENDA Lingers in Congress, a MDV in Maine

Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about.

And this one really does not even qualify very high on an unusual scale, except that it does reflect how often employers have to battle human nature.

The facts leading up to a $1,047,000 verdict from a Maine jury for Edward Russell are apparently these: Russell had filled in at least four times as General Manager for Express Jet at the Portland airport when the position was vacant. When he applied for the position on a permanent basis and did not get it, he sued arguing it was because he was gay.

So far, straight enough (no pun intended). The complicating factor is that in 2003-04 there had been a complaint from three female employees who had unsuccessfully applied for an open supervisory position. At the time, all of the Express Jet managers at the facility were gay men. The women complained that the gay general manager would only hire other gay men.

The theory of the case for the plaintiff -- the company did not want another gay man in the position. Toss in a few untoward comments and it all ends up to $1 million dollar plus verdict, which as the article notes will be reduced by some amount due to damage caps. See, Man wins gay discrimination suit, from the Portland Press Herald.

Discrimination is of course an individual act, and if his sexual orientation was the reason for his not being promoted, Russell clearly was entitled to recover.

But before one gets all righteous about how the wrong the company was, it is easy to imagine a circumstance, where an employer could, justifiably or not, be saying to themselves -- you're damned if you do, and you're damned if you don't.

I said my job was interesting, I never said it was easy.  Each piece of legislation, valid as it may be, just makes it more so.


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Monday, July 19, 2010

When "Sabotgage" Becomes Illegal

I continue to see a number of articles about the need for anti-bullying legislation, much to my dismay. When there is an article about it in the weekly Sunday supplement that's in my local newspaper, you know the movement is gaining traction. See Workplace Bullying: Do We Need a Law?

At least the article had the good sense to include this quote from Victoria Pynchon, who blogs regularly at  Settle It Now Negotiation Blog:
Making a federal or state case over the day-to-day management of any workforce is just plain nuts. At best, it’s a jackhammer solution to an Emily Post problem. At worst, it’s a new scheme for extortion.
What prompted the chain of thought that led to this post was this article from the Official Wire,  California Pizza Kitchen Sued By Former Employee For Harassment And Sabotage Due To Sexual Orientation.

The connection to anti-bullying legislation? Sabotage at work is one of those ills that the statute is designed to protect against. A brochure supporting the Healthy Workplace Bill, includes this definition of bullying:
Verbal abuse, threats, humiliation, intimidation, work interference or sabotage. All of which prevent work from getting done and harm employee health. [emphasis added]
And what kind of allegations might we see in such "sabotage" cases?

Well according to the harassed pizza employee Kenneth Abramowitz it was a homophobic kitchen manager who:
allegedly sabotaged Aramowitz by delaying his food orders, when Abramowitz tried to expedite his customer’s food orders Aguilar would degrade Abramowitz’s homosexuality with verbal and physical slanders.
While I don't want to minimize the problem, and here the verbal abuse might make this a case that would seem actionable, I have griped about slow food service too many times myself to think that it should give rise to a cause of action.

I don't think there is a disagreement that the workplace should be more civil, but adding another layer of legislation is surely not the only way to get there.

He keeps saying and saying and saying .....


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Has It Really Been 8 Years?

Since I posted my first jot here? For Lack of a Green Card

Apparently so.

Thanks for all who stop by.

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Thursday, July 15, 2010

Financial Reform Passes - Major Whistleblowing Changes as Well

Thanks to Jacob Zuckerman at the Employment Law Group for his on the spot reporting about the new whistleblowing provisions contained in the major financial bill that was passed earlier today. See Dodd-Frank Bill Provides Robust Whistleblower Protection, including a link to a download of all the whistleblower provisions contained in the legislation.

Among the interesting provisions:
  • A reward to whistleblowers who provide information to the SEC which results in monetary sanctions exceeding $1 million.  There are lots of caveats and discretion given to the SEC, but if the award is below 30% of the amount recouped, the individual can file an appeal to a federal court of appeals.
  • There is also protection for retaliation against anyone who provides information in accordance with this incentive program.
  • There is a new Whistleblower statute for Financial Services employees which focuses on conduct related to consumer financial product or services, but has quite a broad scope of coverage.
  • A reward to whistleblowers who provide information to the Commodity Futures Trading Commissions, with similar provisions relating to an appeal if the individual does not like the award they received, although it differs from the similar statute under the SEC in that it does not have a 30% standard that must be met before an appeal is filed.
  • Closes a possible loophole in Sarbanes Oxley coverage by making it clear that subsidiaries of publicly traded companies are included if their results are included in the consolidated financial statements. The statute of limitations doubles to 180 days and precludes SOX claims from being covered by mandatory arbitration agreements.
  • There is also a strengthening of the False Claims Act whistleblowers retaliation provision and sets the statute of limitations at three years.
Given that it takes a number of years for employment law legislation to work its way into the framework of  the law of the workplace, it may be a few years before the impact of today's legislative action is really determined.  And because they are statutory and industry specific, it may even take longer for these particularl statutes.

But it is a pretty impressive body of new law and those in the affected industries would do well to take note.


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