Hidden cameras, horrific conduct, and a critical Legal Distinction: Employers aren't automatically liable for every workplace bad act

The allegations against a former engineering executive at The Pokémon Company International are horrifying.

According to a newly filed class-action lawsuit, the executive allegedly hid cameras in employee restrooms at the company's Bellevue headquarters for years, secretly recording women, children, and others using the facilities. Criminal charges already pending against him allege an even broader pattern of voyeurism, including recordings made at a Starbucks, a Safeway, and his own home, along with charges involving child sexual abuse material.

If the allegations are true, the conduct is monstrous.

But here's the legal point that's easy to miss amid the outrage: an employer is not automatically responsible simply because something terrible happens at work. That's not how negligence works.

We cannot simply oblish OSHA

"The Occupational Safety and Health Act of 1970 repealed. The Occupational Safety and Health Administration is abolished."

That's the full text of H.R. 86 — the Nullify Occupational Safety and Health Administration Act — with Representative Andy Biggs introduced in Congress late last week.

In support of his reckless and dangerous legislation, Biggs stated:

"OSHA's existence is yet another example of the federal government creating agencies to address issues that are more appropriately handled by state governments and private employers.… It's time that we fight back against the bloated federal government and eliminate agencies that never should have been established in the first place."

Life without a Department of Labor isn't as efficient as some will tell you

What happens if the Department of Labor vanishes? It's not some dystopian fantasy—it's an actual possibility under Elon Musk and Vivek Ramaswamy's "Department of Government Efficiency." They could eliminate the DOL entirely. The pitch? Let states handle it. The reality? It's a disaster waiting to happen.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

OSHA wants to let union reps into your non-union facility

If OSHA gets its way, you might have to start opening the doors of your business to union reps during the agency's safety inspections.

Pursuant to a new rule proposed by OSHA, in the event of an OSHA inspection an employee can designate another employee or a non-employee third-party to accompany the OSHA agent during the physical workplace inspection.

Are we really still talking about masks?

In-N-Out burgers are mid. Its employment practices are even worse.  

The restaurant chain is prohibiting employees in five states from wearing masks unless they receive a medical note from a doctor. 

The new rules apply to employees in five red or purple states — Arizona, Colorado, Nevada, Texas and Utah. Meanwhile, employees in two blue states — Oregon and California — may still opt to wear a mask as long as it's a company-approved N95. 

According to a company-wide memo, these new rule are designed to "emphasize the importance of customer service and the ability to show our Associates' smiles and other facial features." 

Do you know how to spot an employee at risk for mass violence?

Before Connor Sturgeon left his home with gun to travel to his place of employment, Old National Bank, to open fire in an assault that that killed five and injured eight others, he wrote a note to loved ones. He had also apparently told others that he was suicidal. This was just the most recent in a string of never-ending workplace tragedies.

Prior to Monday, were there any signals to anyone at Old National Bank that Sturgeon was about to be a major problem, that he could kill those with whom he worked in spectacular and tragic fashion?

Sturgeon was a banker with no criminal history. Still, even without a history of criminal violence in one's background (which isn't necessarily a predictor of future violence) there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

Federal agencies need to stay in their lanes

• National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace


• Worker advocates call on OSHA to set standard on employee surveillance


• NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

6th Circuit confirms that private employers can do private employer things

Four employees of the J.M. Smucker Company sought religious exemptions from the company's Covid vaccine mandate. When the company refused, they sued, claiming that the mandate infringed on their First Amendment religious liberties.

The 6th Circuit easily concluded that the 1st Amendment does not apply to J.M. Smucker or limits its power to regulate its workplace as it is a private company, not a federal, state, or local government.

Just because the law may not require first aid training in your workplace doesn’t mean it’s not a good idea

There is no law or regulation that requires employers to have a person or persons trained to provide first aid in the workplace. Instead, OSHA's standards (here and here) merely require that an employer ensure prompt first aid treatment for injured employees, either by ensuring that emergency treatment services are within a reasonable proximity of the worksite, or by providing for the availability of a trained first aid provider at the worksite. 

Do you know what to do when an employee suffers a severe accident at work?

It was like nothing we've ever seen in a televised sporting event … and hope we never see again. 

During last night's Monday Night Football game, 24-year-old Bills safety Damar Hamlin suffered a cardiac arrest while making a hard but routine tackle. He received CPR on the field for 10 minutes in front of his teammates and a full stadium of fans before being transported by ambulance to a local hospital. Those 10 minutes almost certainly saved his life. He is currently sedated and listed in critical condition. We all continue to pray for his health and recovery.

Do you know what to do if one of your employees suffers a severe accident on the job?

How do you respond when your employees are threatened?

Boston Children's Hospital has a scary situation on its hand. Its hospital staff has received aggressive phone calls, emails, and death threats. It's all in reaction to inaccurate information posted on conservative websites and shared across social media about its transgender surgery program.

The allegations are that its medical staff performs hysterectomies on girls under the age of 18. In reality, the hospital performs hysterectomies on patients age 18 and older, but not on children.

Boston Children's began treating transgender youth in 1998 and opened the first trans health program in the U.S. for adolescents in 2007.

You won’t like OSHA when it’s angry

OSHA has proposed nearly $1.25 million in penalties against two Ohio Dollar Tree stores. 

The specific violations cited include hazards related to obstructed egress, unstable stacks, and inaccessible electrical equipment and fire extinguishers, in addition to trip and fall hazards caused by water leaking through the ceiling, carts, boxes, trash and merchandise spread throughout walking-working surfaces in the retail areas and storerooms.

These two sets of citation, however, only tell part of the story. 

Unlike ordering at Chick-Fil-A, legal compliance isn’t chosen from a menu.

"We are looking for volunteers for our new Drive Thru Express!🚘 Earn 5 free entrees per shift (1 hr) worked. Message us for details"

Anyone see anything wrong with this (since deleted) post? I sure do, as does my friend Suzanne Lucas (aka the Evil HR Lady), who correctly points out: "You cannot do this. Even if you want to declare yourself the Lord's chicken, you are still a for-profit business, and for-profit businesses cannot have volunteers. Not ever. Paying in sandwiches does not count."

To put in more succinctly, In a for-profit business, volunteer labor is illegal. Hard stop. 

Ohio decides arming teachers is the solution to mass shootings in schools; Ohio is very wrong

Yesterday, Ohio Governor Mike DeWine signed a new law that will lower the training hours school personnel to be armed from about 700 hours to a mere 24 hours — four for scenario-based training plus 20 for first-aid training, school-shooting history eduction, and reunification education.

This law is the worst possible idea to solve our gun violence and school shooting epidemic. Here are six reasons why.

Your front-line employees are not security guards

A video made the rounds yesterday on Twitter of a mass of Best Buy employees foiling a shoplifting attempt with a stellar zone defense.

This Best Buy has a better defense than your favorite NFL team pic.twitter.com/pBlilzeAj9

— NFL Memes (@NFL_Memes) May 9, 2022

Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

Tragic workplace emergency safety lessons from a candle factory

Thus far, eight employees have tragically died inside the Mayfield Consumer Products candle factory from the tornado that tore through Mayfield, Kentucky, and left the factory a pile of rubble. That number, however, could have been much less.

According to NBC News, as the storm warnings came and tornado sirens blared, as many as 15 employees asked managers for permission to leave so that they could take shelter in their own homes. Instead of granting permission, managers threatened to fire anyone who left their shift early. Now at least eight employees are dead, and many more are injured.