Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.The total penalty? $15,604. For someone who died during a global pandemic because of his employer's irresponsibility
Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.
Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.
Today’s post was going to be about accommodating different holiday traditions at work, but that post will have to wait. Yesterday, San Bernardino happened.
It’s not right that we have to think about how to respond if an active shooter enters your workplace. It’s not right that the phrase active shooter is even part of our vocabulary. But, we do, and it is. And your business needs to know how to respond in the event this evil enters your business.
Thankfully, your friendly neighborhood Department of Homeland Security has put together a guide on how to respond to an active shooter [pdf].
Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.
Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies alleged of retaliation.
Earlier this year, OSHA published a memorandum entitled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”
What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.
If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.
As OSHA’s summarizes:
Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….
Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.
Do you know that OSHA protects the right of employees to go to the bathroom? OSHA’s sanitation standard states:
Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.
The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room.” (just in case your employees like to snack while taking care of business).
It’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the ADA might require extended or more frequent breaks as a reasonable accommodation.
What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.
Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court of appeals disagreed:
While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.
Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing—abandoning one’s job is another.
Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.
In two anticipated opinions, the Ohio Supreme Court has finally found an intentional tort statute that passes muster under Ohio’s constitution. The opinions – Stetter v. R.J. Corman Derailment Servs. and Kaminski v. Metal & Wire Prods. Co. – confirm the constitutionality of R.C. 2745.01. This statute provides:
(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
To understand the importance to Ohio’s businesses of these decisions and the statute they uphold, we first need to take a little trip back in time to see where we’ve been. Workers’ compensation generally provides employers with immunity from civil lawsuits for workplace injuries. A limited exception exists for what is known as an “intentional tort.” The Ohio Supreme Court first recognized this exception in 1982 in Blankenship v. Cincinnati Milacron Chems., Inc. Supreme Court developed this theory over the years in in cases such as Jones v. VIP Dev. Co., Van Fossen v. Babock & Wilcox Co., and Fyffe v. Jeno’s, Inc.
Under these prior cases, to establish the requisite “intent” for a workplace intentional tort, one would have to show:
As the Fyffe court further explained:
To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.
On at least two occasions after Fyffe, the Ohio Supreme Court struck down as unconstitutional statutes that attempted to tighten the Van Fossen/Fyffe common law rules for workplace intentional torts. Thus, until the enactment in 2005 of the current R.C. 2745.01, courts often liberally applied the the Van Fossen and Fyffe decisions to remove a variety of workplace accidents and injuries from the workers’ compensation system and hold employers liable in tort.
This week’s decisions in Stetter and Kaminski upholding R.C. 2745.01 as constitutional are huge victories for employers. Van Fossen and Fyffe’s fuzzy “substantial certainty” standard, which courts liberally applied to the detriment of many employers, has been conclusively replaced with a much tighter statute. Now, all workplace injuries are covered by the workers’ compensation system unless the employer deliberately intended to injure the employee. The Ohio Supreme Court has reaffirmed that workers’ compensation really is supposed to be an employee’s exclusive remedy for workplace injuries in all but the most egregious of cases.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.