Jottings By An Employer's Lawyer

Thursday, September 29, 2011

Workplace Violence Gains Formal OSHA Investigation Procedures

On September 8, OSHA issued Directive CPL 02-01-052, which for the first time establishes procedures for investigating workplace violence complaints.

Two industry groups get singled out for particular focus:
Healthcare and Social Service Settings
This category covers a broad spectrum of workers who provide healthcare and social services in psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, residential facilities and long-term care facilities. Workers in these fields include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses,  healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.
Late-Night Retail Settings
This includes entities such as convenience stores, liquor stores and gas stations. Factors that put late-night retail employees at risk include the exchange of money, twenty-four hour operation, solo work, isolated worksites, the sale of alcohol and poorly-lit stores and parking areas.
In determining whether to conduct an investigation, OSHA personnel are to take into consideration known risk factors as identified by NIOSH; whether it is in one of the high risk industries identified by OSHA (see above) and whether feasible abatement methods exist to address the hazard(s).

There is no specific violence in the workplace standard, but there is the general duty clause, and the Directive mentions some other standards that might come into play:
  • 29 CFR 1904 Recording and Reporting Occupational Injuries and Illnesses.
  • 29 CFR 1910.151 Medical Services and First Aid.
  • 29 CFR 1926.23 First Aid and Medical Attention
  • 29 CFR 1926.35 Employee Emergency Action Plans
This Directive is a must reading for these two industries and for all those who are on your crises management team . (You do have a crises managment plan and team, don't you?)

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Wednesday, September 28, 2011

ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices

Lynne Seabrook was working as an assistant registrar for Upper Iowa University focusing on its Malaysia campus when she was terminated in February 2009. She felt that the termination was because she had been diagnosed with depression, post-traumatic stress disorder and anxiety.

Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier,  Former UIU employee awarded $1.1M by civil jury.

Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.

Headlines and jury awards like this, will do nothing to discourage that view.

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Suit By EEOC Not Covered Under EPLI Policy

It probably seemed like such a simple proposition. EEOC sues employer for sexual and racial harassment, racial discrimination, retaliation and constructive discharge. Employer has an EPLI policy.

Big claims, big settlement -- $2,000,000 plus another $700,000 in legal fees.

No question but that all of the allegations are clearly covered under the policy.

But the definition of covered "claim"?  That was a different story. It read simple enough:
a civil, administrative or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective ‘employee(s).’
Since the underlying case settled, the law suit was between the employer and the EPLI carrier, who argued that the claim was not covered because it was not brought by a 'past, present or prospective employee.'

You know it is no longer a simple proposition, when the Court summarizes some of the arguments in this way:
In its Response to [the Insurance Company's] Motion,  [the Employer] elaborates that the use of a comma followed by the word “which” means that the qualifying phrase modifies only the subject that immediately precedes the comma – in this case, only to “complaint or charge.”  [The Employer] asserts that if [the Insurance Company] intended to require that the “proceeding” be brought by an employee, the entire phrase “commenced by the service of a complaint or charge” should have been offset with commas. 
Hard to believe, but it gets even worse when the Court goes on to note that what the Employer was really referring to was the grammar principle of the "last antecedent rule."

But the bottom line in the trial court -- no recovery as not covered by the policy. Cracker Barrel Old Country Store, Inc. v. Cincinatti Insurance Co., 3:07-cv-00303 (M.D. TN 8/11/11).  If you are the employer, that's a big ouch.

Two thoughts:
  1. Given the dollar amount and the result, it is likely the 6th Circuit will get to weigh in on this decision;
  2. In corporate risk departments right now, EPLI policies are being re-read and calls are being made to brokers making sure that suits brought by governmental entities on behalf of employees are covered.
Life is never as simple as it seems.


Dear Mr. Fox:

A great note. Thank you. I am re-looking at coverage in all of my cases.
Wow...thanks for the heads-up on this ruling. The summary judgment order is dated September 21, 2011 (Docket Entry 193).

Joe English
Taylor English Duma
Atlanta GA
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Tuesday, September 20, 2011

Federal/State Cooperation on Independent Contractor Issue

It does not seem very often that any headline that involves government can properly use cooperation these days, but yesterday's story on NPR, Labor Dept. Expands Enforcement Of Wage Violations, indicates that the Department of Labor is signing agreements with various state agencies to share information that will allow both to go after companies which "mis-classify" individuals as independent contractors.

For governments the bottom line is that when an individual is an employee, it gets more money and it is more easily collected, than when an individual is an independent contractor. If you are an adherent of the "follow the money" line of reasoning, that is enough to make you take notice that you should make sure that your independent contractors, really are that.

The states that have signed agreements so far (and thus states where you really should turn up your own scrutiny, rather than wait for someone else to do so) are Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington, with New York and Illinois lurking in the wings.


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Wednesday, September 14, 2011

Fact Checking Me -- Congressional Rollbacks of Pro-employee Legislation

Three times a year, my good friend Connie Cornell and I give a presentation called Essential Employment Law for our law school alma mater's continuing legal education program.

We have been doing this several years now (I can't quite remember how it started, but I think it had to do with too much wine at some speaker's dinner.)  In several of these presentations I have said, and will probably do so tomorrow unless someone saves me from error by fact checking me, that I am not aware of a time since the Portal to Portal Act of 1947, when Congress has rolled back or taken away any pro-employee legislation that it has passed.

Can any one think of anything to the contrary?

Hmmmm. How about 2004 white collar regs that expressly permitted certain suspensions without pay of exempt employees?
Expanding the FLSA exemptions to define more people as management or exempt.
in the 16 years following the 1938
enactment of the FLSA, the Department of Labor (DOL) established the key
regulatory tests defining whether an employee can be classified as an
exempt white-collar worker.

Doreen Boxer - Top Public Defender
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Bullying Litigation -- Not in the Workplace Yet

It's been awhile since I posted on bullying, but an article earlier this week in the Law Blog of the WSJ reminded me the topic is not going away. Back Off: Bullying Litigation on the Rise.

Fortunately, the article is confined to bullying litigation (and the underlying legislation which gives rise to that litigation) in educational institutions.

But in case you didn't catch my earlier post about the camel's nose in the tent strategy for those who seek to legislate against such behavior in the workplace check out Anti-bullying Legislation for Schools, An Inevitable Tie.


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Tuesday, September 13, 2011

Coming to a Bulletin Board Near You on November 14th, Or Maybe Not ...

On planning committees for seminars, one topic that inevitably gets discussed is that we need to cover some traditional labor law. Almost inevitably someone will point out that in Texas, very few employers have unions and so any discussion of the NLRA or the actions of the NLRB will no doubt turn off a large part off the audience. And that of course, always gets the suggestion -- let's emphasize that the NLRA covers "concerted activity" not just union activity.

All true, true, and true. In fact my very first 5th Circuit argument was just such a case, NLRB v. Datapoint (5th Cir. 1981).

But unless a suit filed by the NAM, or some other similar action is successful, this November 4th, this poster, in its final formatted version that was published by the NLRB today will grace the bulletin board of every employer covered by the NLRA regardless of whether or not they currently have a union, as of November 14th.

This was the result of rule making on the part of the Board, a technique rarely used in the past.

In addition to a list of things that are illegal for either an employer or a union to do, the poster provides the following information:
Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union. 
One view of postings is that they are much like the warning on the side of a lawnmower that you should not stick your hands into the blades, they are so ubiquitous that no one pays any attention.

But one never knows, although it may well be that we will soon find out.

A hat tip to Jeffrey Hirsch at Workplace Prof Blog, who was the first to call to my attention that the final version, in his words, "suitable for framing" was now released, although he gives his own hat tip and cautionary warning.

Update: Thanks to Russell Samson at the Dickinson Law Firm in Des Moines for catching that I was trying to force posting 10 days earlier than required. The effective date of the new rules which require the posting is 75 days after they were released or November 14, 2011.  The Board's equivalent of an FAQ on the new posting requirement (which confirms the correct date) is here.


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Tuesday, September 06, 2011

Labor Day, A Day After - Should We Put This To A Vote?

Any thoughts on how the following legislative finding might fare in today's Congress?
It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

And if we wanted a second proposition to vote on, does the following stand up?
The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.
I think the answer is self-evident. The chances of passage of either is nil.

Still they do currently reflect what is the stated policy of the United States as contained in the existing National Labor Relations Act.

I hate to add to the burdens of our already strained political system, which quite frankly does not look as if it can solve any of its too many pressing problems, but at some point, we need to come to a concensus on what we want our labor policy to be.

For too long now, the political attention paid to the NLRB has been one of neglect and acceptance of the fact that with each political turn we should anticipate the wholesale reversal of "established" law. That has happened with the Obama Board, as it happened with the Bush Boards, as it happened with the Clinton Board etc.

When you can't agree on what the policy should be, it is ludicrous to think that the current one is apt to be successfully implemented.

Regrettably, I think that is something all should be able to agree on.


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