OSHA Audit Recommends More Inspections for Amputations and Serious Injuries, But That’s Unlikely to Happen Anytime Soon

By Kathleen J. Jennings (kjj@wimlaw.com)

The U.S. Department of Labor Office of Inspector General (OIG) has issued the results of an audit of OSHA’s fatality and severe injury reporting program. The main conclusion: OSHA needs to take steps to prevent underreporting of fatalities and injuries, and ensure employers correct identified hazards. The audit bases this conclusion on the following findings:

• OSHA had no assurance employers reported work-related inpatient hospitalizations, amputations, and losses of an eye. Estimates show employers do not report 50 percent or more of severe injuries. Moreover, OSHA did not consistently follow its policy to issue a citation when an employer failed to report work-related fatalities and severe injuries within the specified timeframes.

• For an estimated 87 percent of employer investigations, OSHA lacked justification for its decision to allow employers to perform an investigation, or closed investigations without sufficient evidence employers had abated the hazards that had caused the accident. Furthermore, OSHA did not monitor any employer investigations to ensure accuracy and completeness of the information reported.

By way of background, in January 2015, OSHA made significant changes to employer reporting requirements for work-related fatalities and severe injuries. OSHA’s revised regulations require employers to report all work-related fatalities, inpatient hospitalizations, amputations, and losses of an eye within specific timeframes; and encourage employers to investigate these types of incidents and abate the hazards identified to prevent future accidents.

One of the audit’s recommendations is for OSHA to conduct inspections on all Category 1 incidents (a fatality, two or more in-patient hospitalizations, emphasis programs [such as amputation prevention], and imminent danger). Is this likely to happen any time soon? Probably not; OSHA simply does not have sufficient personnel to investigate every serious workplace injury.

The decision as to whether the report of a Category 1 injury will result in an OSHA inspection is within the discretion of the Area Director, so the probability of an OSHA inspection following such an injury will depend upon the Region where an employer operates. As a practical matter, when an employer reports a serious injury to OSHA, it should be ready for an OSHA inspector to show up at the facility.

Pro tip: We’ve said it before, and we’ll say it again: a company has the right to have its counsel present for an OSHA inspection. We recommend that company counsel be involved as soon as a serious workplace injury occurs so that counsel can manage OSHA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The North Carolina Department of Labor Says that Employers Can Fire Employees Who Do Not Show Up for Work During a Hurricane. That Does Not Mean It is A Good Idea.

By Kathleen J. Jennings (kjj@wimlaw.com)

In North Carolina, a major hurricane is not necessarily a good excuse for employees to miss work, at least according to the North Carolina Department of Labor.

This is what the North Carolina Department of Labor website says:

Does my employer have the right to make me come to work during adverse weather conditions?

Yes. Since an employer does not have to have an adverse weather policy at all, the employer can simply inform its employees that they must report to work whenever the business is open regardless of the weather conditions or road conditions. With very few employment law exceptions (discussed below), an employer can make staying at work or reporting to work during adverse weather a condition of employment.

And it does not matter if a ‘state of emergency” has been declared:

What if the governor declares a “state of emergency” and asks everyone to stay off the roads?

It does not matter if state officials have declared a state of emergency and are advising people to stay off of the roads. The decision to stay open or to close, for its employees to remain at work or leave early, or for its employees to report to work or not during adverse weather conditions, is entirely up to each individual employer to make on its own.

Just because an employer can require employees to work during a hurricane does not mean that it should. If it is unsafe for employees to travel or even remain in the area (due to an evacuation order), the employer that requires employees to report to work anyway may be violating public policy and placing people under unnecessary risk of harm. Placing employees in unnecessary danger may also violate OSHA’s General Duty clause. And finally—it just looks bad. Unless the business is one that provides important public services (such as a hospital or utility), let employees stay home (or evacuate) and be safe.

Pro tip: If your business does not have a written adverse weather policy, it is time to implement one. At a minimum, an employer should have a policy regarding how it will communicate with employees about any closing of the business due to adverse weather so employees do not make unnecessary trips.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Sexual Harassment Doesn’t Have to Be Overtly Sexual

By Kathleen J. Jennings (kjj@wimlaw.com)

An employer can be legally responsible for harassment against its employees by other employees—and third parties, such as customers. That means that an employer needs to take prompt, effective remedial action if it is aware that one of its employees is being sexually harassed by a customer. Costco recently learned this lesson in the form of a $250,000 jury verdict rendered in favor a former employee who claimed that she was sexually harassed and stalked by a Costco customer. That verdict was upheld by the 7th Circuit Court of Appeals this week. (EEOC v. Costco Wholesale Corp. , 7th Cir., Nos. 17-2432 & 17-2454, 9/10/18). The 7th Circuit’s written decision reminds us that conduct that is not overtly sexual may nevertheless meet the legal definition of sexual harassment and trigger a duty by the employer to address it.

Dawn Suppo, an employee of Costco, was stalked by Thad Thompson, a customer of Costco, for over a year. Things got so bad that Suppo secured a plenary no-contact order from an Illinois state court. Traumatized by the experience, she also took an unpaid medical leave, and when she didn’t come back, Costco terminated her employment. The Equal Employment Opportunity Commission (EEOC) sued Costco on Suppo’s behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson’s harassment. The case went to trial, resulting in the $250,000 verdict in the EEOC’s favor.

Costco challenged the verdict on the ground that the Thompson’s conduct was not severe or pervasive enough to rise to the level of hostile environment sexual harassment. Thompson’s comments were not overtly sexual; he asked (often repeatedly) where she was from, what her nationality was, where else she worked, where else she went, where she lived, what else she did, if she had a boyfriend, which male employees she spoke to, and the identity of a man she shopped with. On various occasions, he told her she was “pretty,” “beautiful,” and “exotic.” He asked how old she was. He tried to give her his business card on one occasion (pushing it into her hand “two, three, and four times”), asked her out on dates approximately six times, and “constantly” tried to give her his phone number. He also closely observed her appearance: For example, on a day that he saw her twice, he “noticed that she had obviously powdered her face” between the first and second times that he saw her. On another occasion, he noticed that her eye makeup had been applied unevenly.

There was also some physical contact, but it was not overtly sexually suggestive either. Thompson used his shopping cart to bump into Suppo or her cart four times. He touched her twice: On one occasion, Thompson touched her face under her eye, noting some darkness. On another, he touched her wrist, commenting on her veins and a sore on her hand that was healing slowly. Thompson also attempted unsuccessfully to hug Suppo twice.

The 7th Circuit acknowledged that Thompson’s conduct was not as egregious as the sexually harassing conduct described in some of its other decisions. However, the Court pointed out that conduct does not have to be overtly sexual in order to be actionable; the alleged harassment must occur because of the plaintiff’s sex. But it need not consist of pressure for sex, intimate touching, or a barrage of deeply offensive sexual comments. Actionable discrimination can take other forms, such as demeaning, ostracizing, or even terrorizing the victim because of her sex. Severity and pervasiveness must be judged by “the totality of the circumstances”.

Because Thompson’s talking and touching took place in the context of his stalking of Suppo, it rose to the level of actionable sexual harassment.

Pro tip: If an employee complains that someone—another employee, a manager, or a third party—is making her/him uncomfortable, the employer needs to look into the matter, even if the conduct complained of is not overtly sexual.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

New Batch of Opinion Letters from the Wage and Hour Division of the Department of Labor

 

by Kathleen Jennings (kjj@wimlaw.com)

Last week, the Wage and Hour Division (WHD) of the Department of Labor released six opinion letters—four involving the Fair Labor Standards Act (FLSA) and two involving the Family and Medical Leave Act (FMLA). An Opinion Letter is an official ruling or interpretation of federal wage and hour laws by the WHD, and as such, they provide valuable information to employers about whether certain policies or practices are in compliance with federal law.

This latest batch of Opinion letters provide guidance on the following topics:

  • the application of the “retail or service establishment” exemption,
  • how to compensate workers for time spent attending voluntary health-and-wellness activities,
  • how to apply overtime exemptions for workers in movie theaters,
  • whether short-term employees can be considered volunteers,
  • whether organ donors qualify for unpaid medical and family leave, and
  • if an employer’s no-fault attendance policy violates the Family and Medical Leave Act.

The two Opinion letters involving the FMLA clarified some interesting issues: no-fault attendance policies and organ donation.

Opinion letter FMLA2018-1-A addressed the application of an employer’s no-fault attendance policy to an employee on FMLA. The letter found that no-fault employer attendance policies that apply points to employee records for absences and tardiness do not violate the FMLA if the policy freezes the points during employees’ FMLA leave, provided it is applied in a nondiscriminatory manner.

Opinion letter FMLA2018-2-A addressed the question of whether an employee who donates an organ may qualify for FMLA leave, even if he/she was healthy before the donation. The answer is Yes–and he/she and may also use FMLA leave for his/her post-operative treatment. An organ donation qualifies as a serious medical condition under the FMLA when it results in an overnight hospital stay, the opinion letter said, noting that organ-donation surgery commonly requires overnight hospitalization.

Full text of the Opinion Letters can be found through this link.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.