HR Tip: Supreme Court ruling alerts employers to quickly compare EEOC complaints and lawsuits

In Fort Bend County v. Lois M. Davis published on June 3, the US Supreme Court ruled that Title VII’s charge-filing requirement is a processing rule, not a jurisdictional prescription, and an objection to it may be forfeited “if the party asserting the rule waited too long to raise the point.” This ruling revolves around the fact that employees filing suit under Title VII of the Civil Rights Act of 1964 must first file a complaint with the EEOC.

It means that employers must immediately check if charges in litigation filed under Title VII jive with those in the previously filed EEOC complaint. If the charges do not match, and employers act immediately, then they can get that claim dismissed, but delaying the action, which occurred in this case, means that chance is forfeited. The question of how long an employer can wait before raising an objection or defense without risking forfeiture was not decided by the Supreme Court and will be litigated and developed in the lower courts going forward.

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HR Tip: Depression and suicide: a growing workplace worry

It seems daily there are stories about the growing suicide rate and the national decline in health and mental well-being, particularly among young people. There’s no escaping the issue in the workplace; it mirrors that of the general population. While workplace suicide numbers are small, they are rising and are traumatic for everyone in the workplace.

According to Happify, a mental health app, workers’ mental well-being sank to a five-year low in 2018. The analysis of a half million people shows a correlation between age and depression, particularly among employees between the ages of 18-24 who experienced a rise of 39% in depressive symptoms over the past five years. Although the increase was lower (24%), Millennials, ages 25-34, also are a high-risk group. In contrast, older employees between the ages of 55-64 showed improvements in their mental health.

While this analysis did not examine whether the causes were internal or external to their employment, it notes that earlier research found younger adults tend to be more stressed and worried about job-related matters than older workers. It’s a transitional time, figuring out who they are and what they want to do with their lives, which can be challenging.

Further, CDC research identified white, middle-aged, and primarily rural as vulnerable populations. The report also identifies construction workers as high risk – more male construction workers take their lives than any other industry. Some attribute this to a high concentration of “alpha” males who are supposed to be particularly tough but face challenges of a high-pressure environment, a higher prevalence of alcohol and substance abuse, separation from families, and long stretches without work. In response to this problem, the industry has created the Construction Industry Alliance for Suicide Prevention.

Reducing the stigma of mental health is the number one thing companies can do. While it is a devastating moral and social issue, it also has serious economic implications for employers. Some of the signs to watch out for are increased tardiness and absenteeism, decreased productivity and self-confidence, inattention to personal hygiene, isolation from co-workers, agitation, and increased conflict among co-workers.

Educating employees to increase the awareness of the warning signs and providing resources to get help are key. A starting point is simply paying attention to people at work and asking how someone is doing. A new OSHA webpage also offers confidential resources to help identify the signs and how to get help.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

“At-will employee” no defense for firing an employee after reporting a safety hazard

The U.S. District Court of the Eastern District of Pennsylvania recently denied an employer’s motion to vacate a jury’s award of punitive damages to a former employee of an iron-casting company who claimed he was terminated for reporting alleged safety and health hazards. When no corrective action was taken after he repeatedly complained about a roof leak that leaked directly into an electrical box and created a slipping hazard, he filed an anonymous complaint with OSHA.

The agency conducted an unannounced inspection and a few days later he was fired. He then filed a whistleblower complaint with OSHA that found Hamburg, Pennsylvania-based Fairmount Foundry fired him in retaliation for engaging in a protected activity under Section 11(c) of the Occupational Safety and Health Act. In Acosta v. Fairmount Foundry Inc., a jury awarded $40,000 for lost wages, pain and suffering and punitive damages to the former employee, Zachary Zettlemoyer.

The company argued the jury had not been instructed on at-will employment and another trial was warranted. But the court denied it. “Even if we gave an at-will employment instruction explaining Mr. Zettlemoyer could be terminated for any reason or for no reason at all, Fairmount Foundry could not have terminated him for engaging in protected activity,” the judge stated. “Fairmount Foundry does not explain how an instruction on at-will employment prejudiced it and, given our charge on the elements of a retaliation claim and pretext, we see no prejudice.”

Moreover, in response to a motion by the Department of Labor, the court awarded prejudgment interest on the $25,000 back pay award and ordered Fairmount Foundry to reinstate Mr. Zettlemoyer. It also permanently enjoined Fairmount Foundry from violating Section 11(c) and ordered Fairmount Foundry (to) expunge from Mr. Zettlemoyer’s personnel record any adverse reference to discharge on October 8, 2015; post a court-approved anti-retaliation notice in a common area for a period of sixty days; and provide a neutral reference regarding Mr. Zettlemoyer’s employment, if requested by subsequent employers.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Retaliation tops list of EEOC charges for 8th consecutive year

A total of 39,469 retaliation charges were filed with EEOC in fiscal year 2018, which ended on Sept. 28, which accounted for 51.6% of the total charges filed. Retaliation means an adverse employment action was taken against the employee because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.

Following retaliation, sex was the second-most frequent charge filed with the agency in fiscal year 2018, at 24,655, or 32.3% of the total. This was a change from fiscal year 2017, when race was the second-most frequent charge.

Other charges were: disability, 24,605, or 32.2% of the total; race, 24,600, or 32.2% of the total; age, 16,911, or 22.1% of the total; national origin, 7,106, or 9.3% of the total; color, 3,166, or 4.1% of the total; religion, 2,859, or 3.7% of the total; Equal Pay Act, 1,066, or 1.4% of the total; and genetic information, 220 or 0.3% of the total.

The reason for the preponderance of retaliation claims is that they are easier to prove than discrimination claims. It’s difficult to defend when there was adverse action against an employee only days or weeks after filing an EEO charge.

Although retaliation cases for workers’ comp claims are not handled by the EEOC, but by state courts, the challenges of defending them are similar. Similarly, retaliation cases for reporting OSHA violations are heard by federal courts. Two recent cases were decided in favor of employees.

An employee of Lloyd Industries in Pennsylvania was operating a press brake that did not have machine guarding and three of his fingers were crushed and had to be amputated. Another employee took photos to assist the injured employee with his comp claim. After the incident, the injured employee was fired and he filed a complaint with OSHA.

Following the OSHA inspection, the owner stated that there was a “rat” in the facility and fired the employee who had taken the photo five days after the inspection. The inspection resulted in total fines of $822,000, which led the owner to terminate the plant manager for cooperating with the OSHA inspection. The jury found the timing of these terminations was no coincidence and the court will determine damages in the trial’s second phase.

In another case, a Pennsylvania jury awarded $40,000 for lost wages, pain and suffering and punitive damages to a former employee of Hamburg-based Fairmount Foundry Inc. who claimed he was terminated for reporting alleged safety and health hazards.

According to some attorneys, juries seem more inclined to believe that someone would retaliate than discriminate based on race, sex or other protected minority-status factors. Also, the larger verdicts seem to come from the fact that retaliation is viewed as a manager’s reaction (to get even) to the worker’s filing a complaint or for benefits.

To either avoid retaliation charges or successfully defend them, experts advise caution in taking any negative job action against a worker shortly after a case has been filed. However, employers can successfully defend against these claims by producing evidence of a legitimate, non-discriminatory basis for the adverse action, but there needs to be clear, thorough, written documentation of all the facts.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Are you still doing annual performance reviews?

The farewell to annual performance reviews began in mid-2015 and more and more employers are restructuring their performance management process. In a blog, Nancy Owen, Senior Human Resource Consultant with East Coast Risk Management, notes that employers need to spend more time collecting information related to their unique environment and culture and examine the pros and cons of the process for reviewing employees.

Employers are realizing that they need to increase their communication to their employees about performance and conduct. Here are her suggestions:

  • “First thing” stand-up meetings, conducted at the beginning of a shift to communicate daily updates and company or departmental news to employees, so that employees never feel “in the dark.”
  • Monthly one-on-one meetings between supervisor and employee, pointing out what is going well and what is not according the goals and competencies set forth at the beginning of the year.
  • Quarterly and/or mid-year reviews, when any adjustments or changes should take place:Are the employee’s goals still realistic?

    Has the employee moved to a different department or taken on new tasks?

  • Year-end discussions, carried out in a non-formal meeting, to review the last year and what could have been done better or needs to change for the upcoming year

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

 

HR Tip: SHRM benefit survey on popular perks30

aAccording to the Society for Human Resource Management’s (SHRM’s) 2018 Employee Benefits Survey the current low level of unemployment is driving employers to beef up their benefits to retain and recruit employees. More than two-thirds of the employers in the survey raised their benefit levels in the past 12 months. There were expanded offerings in:

  • Health-related benefits (up among 51 percent of respondents)
  • Wellness (44 percent)
  • Employee programs and services (39 percent) such as retirement savings and advice
  • Professional and career development benefits (32 percent)
  • Leave, family-friendly and flexible working benefits (each 28 percent)

The report details the types of increased benefit offerings in each category as well as trends that have stabilized or reversed. For example, under Wellness, it notes that substantial increases were seen in:

  • Company-organized fitness competitions/challenges (38 percent, up from 28 percent last year).
  • CPR/first aid training (54 percent, up from 47 percent).
  • Standing desks (53 percent, up from 44 percent).

“One sign that employers are targeting their benefit spending for maximum effectiveness: Since 2014, the share of organizations offering offsite fitness center memberships fell to 29 percent from 34 percent, while those that provide a subsidy/reimbursement for offsite fitness classes rose to 16 percent from 12 percent. Too often, people will join a gym but rarely go, employers found, while those who sign up for classes are likely to use them.”

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: NLRB overturns Obama-era rulings related to joint employment and handbooks

A newly appointed Republican majority on the National Labor Relations Board (NLRB) returned to the standard that companies must have “immediate and direct” control over a worker to be considered a joint employer. Under the Obama rule indirect control by one organization over another was enough to establish a joint employer relationship (Browning-Ferris decision). Applying the reinstated pre-Browning Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and, therefore, jointly and severally liable for the unlawful discharges of seven striking employees.

In the employee handbook case, the board overruled a prior decision placing limits on employer handbook policies that could be “reasonably construed” by workers to limit their right to engage in protected concerted activity-so-called Section 7 of the National Labor Relations Act (NLRA) rights.

The underlying case in the ruling involved a policy by The Boeing Company that prohibited employees from taking photos on company property “without a valid business need and an approved camera permit.” The company argued this was necessary to protect sensitive information and the NLRB found that the no-camera rule was lawfully maintained.

In this decision, the board replaced the “reasonably construe” standard with a new balancing test that will consider the following factors with regard to a “facially neutral” handbook policy:

  • The nature and extent of the potential impact on NLRA rights.
  • The employer’s legitimate justifications associated with the rule.

The board outlined three categories of employment policies, rules and handbook provisions:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Injury tracking application restored

The application launched on Aug. 1, as part of the compliance effort for its controversial electronic record-keeping rule, but a note on the website two weeks later said technical difficulties were making some of the ITA pages unavailable. A technology scan confirmed that there was no security breach and the application was restored.


Comments sought on lockout/tagout

The agency plans to issue a request for information in April 2018 regarding potential updates to its lockout/tagout standard, a frequently cited violation that is increasingly deemed out of date. There has been an increase in the variance requests because advances in technology that incorporate computer-based control of hazardous energy are increasingly used in machines and can conflict with the existing lockout/tagout standard.

Employer faces over $1 million in fines, including first walking-working surfaces violations

Shortly after the requirements under new Subpart D, “Walking-Working Surfaces (WWS),” became effective, Aluminum Shapes LLC of New Jersey Camden County was inspected and cited for 51 safety and health violations with proposed penalties of $1,922,895. Among the citations were fixed ladders, portable ladders, skylights, stairs, loading docks, and other walking-working surfaces that were not compliant. One violation for failure to ensure that the side rails of a ladder extended 42 inches above the top of the access level or landing platform served by the ladder resulted in a proposed penalty of $9,959.


Website changes

  • Data on workplace fatalities removed from home page, continuing shift away from policy of public shaming
  • The publication webpage is now formatted for all devices and has been reorganized
  • More employer stories added to heat protection pages

Trench safety symposium webinar available online

Conducted in conjunction with the National Utility Contractors Association, and the University of Texas at Arlington, the symposium focused on ways to prevent trenching and excavation hazards in the construction industry.

Safety training videos for tobacco farm workers

The North Carolina Department of Labor’s Agriculture Safety and Health Bureau, the Farm Labor Practices Group, NC State University and industry stakeholders collaborated to produce safety training videos addressing agricultural safety and health hazards faced by tobacco farm workers.

Enforcement notes

California

  • Crenshaw Manufacturing Inc. in Huntington Beach received six citations and $142,715 in penalties after a worker had three fingers amputated while manually loading products into an operating punch press. Fines relate to machine guarding, failure to conduct regular inspections, and lack of training.
  • Santa Ana-based Triumph Processing- Embee Division, Inc. plant, manufacturer of aircraft parts, received a total of 23 citations, totaling proposed fines of $87,500 for exposing workers to the dangerous chemical hexavalent chromium (chromium-6), and not notifying workers that they knew or try to protect workers from exposure.

Florida

  • Jacksonville-based Great White Construction Inc., a roofing contractor, faces penalties of more than $1.5 million for 14 workplace safety violations and has been placed in the Severe Violator Enforcement Program due to high-gravity, willful, egregious violations related to fall hazards.
  • An administrative law judge has vacated two citations issued against Riverview-based Central Site Development L.L.C. involving a fatality of a worker of a subcontractor. The company had received two citations under the general duty clause, but the judge found the multiemployer worksite doctrine does not apply to citations issued under the general duty clause.

Massachusetts

  • UHS of Westwood Pembroke, Inc. – doing business as Lowell Treatment Center, a behavioral health facility, faces $207,690 in proposed penalties for failure to abate violations involving workplace violence.
  • An administrative law judge upheld citations and $4,000 in penalties assessed against a contractor, Chris Welch, for failing to provide fall protection and appropriate ladders for his workers who were working on a roof of a house in Springfield.
  • An administrative law judge has affirmed citations and proposed fines issued against a roofing contractor, William Trahant Jr. Construction Inc. in Lynn, who failed to show at his scheduled commission hearing. Penalties are $43,560 for failure to provide fall protection or hard hats.

New York

  • Carthage Specialty Paperboard is facing $357,445 in proposed penalties for more than 60 safety and health hazards, including more than 20 instances of machinery lacking safety guards to prevent possible amputation.

Pennsylvania

  • An administrative law judge upheld citations against Montgomeryville-based Lloyd Industries Inc.’s facility after a worker’s three fingers were amputated when a machine without safety guards crushed his hand. Proposed total penalties are $822,000.

Wisconsin

  • Marshfield-based Felker Brothers Corp., a manufacturer of steel pipes and tubes is facing $110,458 in proposed fines after a worker was struck by a machinery part and suffered a shattered jaw and concussion, a worker was exposed to hexavalent chromium at levels 1.8% higher than the permissible exposure limit and other violations.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Can employers terminate employees for off duty activities?

Following the violence in Charlottesville, Virginia, there was an active social media campaign to identify protesters and encourage employers to terminate their employment. While the legal consensus seems to be that private employers have the right to take action against employees for expressing views that could create a hostile work environment or damage the employer’s reputation, even if the activities happened off the clock, many caution to decide on a case by case basis.

There are no federal laws that would be violated if a worker were fired by a private employer. The First Amendment’s protections of freedom of speech apply only to the government, not to private employers. However, some states, such as California, Colorado, New York and North Dakota, have laws that prohibit from discriminating against employees for engaging in lawful conduct when they are off duty. In such states, there is a greater burden on the employer to justify the termination. And employers must be careful not to run afoul of the National Labor Relations Act by punishing employees who may be commenting about the terms and conditions of their employment.

In the era of social media, pictures and videos from rallies and protests go viral instantly. If a manager is using hateful speech and acts on it at work, employees can feel threatened and belittled and harassment and discrimination suits could be harder to defend.

Today, many feel more emboldened about what they can say and do and employees may not understand what they do off the job can impact their employment. For this reason, it is critical for employers to review their social media, employment or personnel policies, and other relevant policies to articulate their expectations in these situations.

Deciding whether to take action against an employee for off-duty conduct can be a slippery slope and it’s best to consult with their legal counsel before making decisions.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.StopBeingFrustrated.com