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

How to identify and handle an employee at risk for workplace violence

It's been four days since Brandon Hole returned to the Indianapolis FedEx facility at which previously worked and killed eight people. 

I've previously written about how to spot an employee at risk for workplace violence. And while I'm not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a great reminder of what employers need to do when they suspect an employee presents a risk of violence.

Click here for my thoughts.

* Image by Max Kleinen on Unsplash

Coronavirus Update 2-24-2021: How much does it cost an employer for not following COVID-19 safety rules?

OSHA has cited a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections, which ultimately lead to an employee's death. The details, from OSHA's news release.

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

Just because you’re out on FMLA does not grant you a license to threaten your co-workers

“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

Help me understand guns

This weekend was one of the deadliest on record ever for gun violence. Dozens were killed and more injured in separate shootings in El Paso, Texas, and Dayton, Ohio.

So, today, I take a diversion from employment law to ask a simple question.

Can someone help me understand guns?

Do workplace bullies violate OSHA?

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

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.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

Which mental health service does the FMLA not cover?

Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Employee suicide is the next big workplace safety crisis

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks

It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.

• Suicide is the 10th leading cause of death in the U.S.
• Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
• In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
• Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
• In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
• The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
• The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.

The numbers are stark and scary, and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?

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

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.

After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

Ohio Chamber of Commerce takes the lead on fighting addiction at work with launch of its Employer Opioid Toolkit

Nearly 50,000 Americans lost their lives to opioid-related overdoses in 2016. Compare that figure to the HIV/AIDS epidemic, which recorded 43,000 deaths during its peak in 1995, or the entire Vietnam war, which saw 58,000 U.S. soldiers die.

Needless to say, our opioid problem is a national epidemic. And, Ohio sits right on the front lines, with the 3rd highest rate of annual opioid-related deaths, trailing only West Virginia and New Hampshire.

My state, however, is not taking this problem sitting down. Last week, the Ohio Chamber of Commerce launched its Employer Opioid Toolkit.

OSHA doubles down against retaliation

OSHA has had a busy October.

First, it announced that it has delayed enforcement, until December 1, of the anti-retaliation provisions of its injury and illness tracking rule.

According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.

Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On October 19, OSHA published both a memorandum and example scenarios interpreting these new anti-retaliation provisions.

OSHA publishes final rule on whistleblower complaints under the Affordable Care Act

As I’ve previously documented in this space, OSHA does a whole lot more than just regulate workplace safety. Its other responsibilities include enforcing the anti-retaliation whistleblower protections of a veritable alphabet soup of federal laws.

One such law is the Affordable Care Act (aka, Obamacare). And, just last week OSHA published its final rule on whistleblower complaints under the Affordable Care Act, available for download as a pdf here.

Ohio Supreme Court sides with workers’ comp fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

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.

Not so fast.

OSHA now thinks that it can cite facilities it hasn’t even visited

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

According to OSHA, Ohio is one of the unsafest states for workers

Did you know that OSHA publishes statistics for high-value enforcement cases? Each week, OSHA updates a state-by-state list of enforcement cases with initial penalties above $40,000.

Since we just wrapped 2015, I thought it was a good time to take a peak at the list to grab an annual snapshot.

Are you prepared for an active shooter at your workplace?

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].

OSHA’s new burden of proof is a big burden for employers

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.

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Do you know? OSHA protects employees from retaliation for reporting injuries

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Dr. Michael that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?

• For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.

• And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue, these types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

When you gotta go, you gotta go: The right to workplace bathroom breaks

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.