Things you should know

Cell phone users twice as likely to be involved in a crash – study

The AAA Foundation for Traffic Safety compared drivers’ odds of crash involvement when using a cell phone relative to driving without performing any observable secondary tasks. The study found that “visual-manual interaction with cell phones while driving, particularly but not exclusively relative to text messaging, was associated with approximately double the incidence of crash involvement relative to driving without performing any observable secondary tasks.”
Health care environment named top concern in comp – survey

The National Council on Compensation Insurance (NCCI) surveys senior carrier executives in its annual Carrier Executive Pulse. The top challenges that executives identified for 2018 are:

  1. Rising costs, advances, and uncertainty in healthcare
  2. Political, regulatory, legislative, and legal environment
  3. Maintaining profitability both today and tomorrow
  4. The changing workplace and workforce
  5. The future of the workers’ compensation industry
  6. Opioid abuse and medical marijuana

Impact of worker obesity can be managed with prevention, treatment programs: ACOEM

Wellness programs and insurance coverage that includes bariatric surgery can help manage worker obesity and alleviate its economic costs to employers, according to a released guidance statement from the American College of Occupational and Environmental Medicine (ACOEM).
First Edition of NCCI’s court case update

The first edition of NCCI’s Court Case Update provides a look at some of the cases and decisions being monitored by NCCI’s Legal Division, that may impact and shape the future of workers’ compensation.
New guidelines intended to reduce fatigue among EMS workers

The University of Pittsburgh Medical Center and the National Association of State EMS Officials have partnered on a set of guidelines aimed at reducing work-related fatigue among emergency medical services workers.
State News


  • Cal/OSHA adopted a new rule to help reduce injuries for hotel housekeepers. The rule will require employers to establish, implement, and maintain an effective written musculoskeletal injury prevention program that addresses hazards specific to housekeeping.
  • The Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries.
  • The state is drafting workplace safety rules for the burgeoning marijuana industry.

New York

  • State Workers’ Compensation Board is inviting public comment on a proposed Pharmacy Formulary. The comment period expires on February 26, 2018.

North Carolina

  • Industrial Commission recently announced an update in the rules for the workers’ compensation system addressing the opioid crisis. Published January 16, 2018, in Volume 32 Issue 14 of the North Carolina Register, the rules are for the utilization of opioids, related prescriptions, and pain management treatment. A public hearing is scheduled for March 2, 2018 at 2:30 p.m., and the Commission will accept written comments until March 19, 2018.


  • The Governor signed a statewide disaster declaration related to the opioid crisis to enhance state response, increase access to treatment, and save lives. It will utilize a command center at the Pennsylvania Emergency Management Agency to track progress and enhance coordination of health and public safety agencies.

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Legal Corner

Six-month leave upheld by United States Court of Appeals, 11th Circuit

In Billups v. Emerald Coast Utilities Authority, an Utility Service Technician II suffered a shoulder injury and received physical therapy, but after two months it was determined he required surgery. The surgery was delayed because of his reaction to anesthesia. His company had a policy of 26 weeks of leave for work injuries. Following surgery, the doctor said it would likely take six months for his shoulder to recover to the degree that he could perform the essential functions of the job.

The company sent a notice indicating he would be terminated if he could not return to full duty by June 18, 2014, which was the end of his six-month period of leave. At the time, they were short staffed and dealing with severe flooding damage to the water and sewer infrastructure. At a predetermination hearing, he was given one day to obtain a doctor’s statement regarding his full-duty return to work date. He was able to obtain a note from PT about his release date, but not from his doctor and was fired on June 23, 2014. He was not cleared by his doctor to return to work full duty until October 23, 2014 and it was with limitations.

After losing in district court for not identifying a reasonable accommodation, the employee appealed arguing that a short period of leave would have been a reasonable accommodation under the ADA. The court noted he had not demonstrated that his requested accommodation would have allowed him to return to work “in the present or in the immediate future” and therefore, the request for additional leave could be interpreted as a request for indefinite leave, which is unreasonable.
Reassignment of minor job duties does not violate FMLA

In Marsh-Godreau v. State University of New York College at Potsdam, the U.S. District Court for the Northern District of New York ruled reassignment of minor job duties did not violate the FMLA. While the employee was on leave, the university reassigned some entry responsibilities for the annual report and did not return the responsibilities when she returned.

Her suit alleged that the university reduced her responsibilities, her supervisor exerted unwarranted and excessive scrutiny, and the university no longer allowed her to perform essential functions of her role. The court found in favor of the employer, noting the employee continued to be employed and that she received raises annually until her retirement.
Workers’ Compensation
Ruling published on confidentiality of identities of medical professionals performing independent medical reviews – California

The 1st District Court of Appeal has ordered publication of its ruling in Zuniga v. WCAB (Interactive Trucking) that found injured workers do not have a due process right to know the identities of medical professionals performing independent medical reviews. Only published opinions are binding precedent in California.
Pulse Nightclub first responder denied PTSD benefits because there was no accompanying physical injury – Florida

In Florida, witnessing tragic events on the job are classified as within the scope of employment for first responders and, therefore, PTSD must accompany a physical injury in order for first responders to be eligible for benefits. The responder argued that he had been hospitalized for hypertension and this should be considered a physical injury. The judge ruled that since the responder had not reported a physical injury, nor had his blood pressure taken on the night of the shooting, hypertension could not be claimed as a physical injury.
Surgery not compensable when EMA considers it reasonable but counsels against it – Florida

In Ascension Benefits & Insurance Solutions of Florida v. Robinson, the 1st District Court of Appeal ruled that a worker was not entitled to the surgeries that an expert medical adviser had counseled against, even though the adviser acknowledged that the procedures would be reasonable treatment for the worker’s injuries. Based on the report of the Expert Medical Adviser (EMA) and IME, a judge determined surgery on the injured employee’s elbow and index fingers was reasonable.

Upon appeal, the court said reasonableness is not the only standard to apply when awarding medical treatment, treatment must also be medically necessary. The EMA never said the surgeries were medically necessary and, in fact, recommended against them. Under Florida law, the opinion of an EMA is presumed to be correct, unless there is clear and convincing evidence that it is wrong.
Employer discovers lower quote does not mean same coverage when out of state accident is not covered – Indiana

Custom Mechanical Construction (CMC) is an Indiana-based mechanical contractor but is authorized to do business in Kentucky. Since its establishment in 2005, it had used the same insurance agent and the same carrier for workers’ comp. In 2015, the agent solicited bids from other carriers and secured a $3,000 lower quote. The company claims that it was led to believe that the coverage was the same. When a CMC worker was injured on a job in Kentucky, the carrier filed suit in a federal trial court in Indiana seeking a judicial determination that its policy does not cover claims from Kentucky. CMC counterclaimed that the carrier wrongly and unreasonably denied coverage, and that the broker is liable for failing to procure adequate coverage. The judge found that CMC had no viable claim for bad faith nor negligence and that the broker was not an agent of the carrier. Accident Fund Insurance Co. of America v. Custom Mechanical Construction
Interactive process not required under Human Rights Act (MHRA) – Minnesota

In McBee v. Team Industries, the Court of Appeals ruled that an employer was not required to engage in an interactive process to determine whether an injured worker could be accommodated, and that the employer had defeated the worker’s claims of discrimination and retaliation under the state Human Rights Act and Workers’ Compensation acts.

A machine operator worked for a foundry and aluminum die-casting facility and was required to do heavy lifting and operate, repair, and maintain heavy machinery. She sought medical attention for severe pain in her hands, back and neck and her doctor found she had disc narrowing, a bulged disc and bone spurs in her vertebrae and he imposed lifting restrictions. A month later, she was fired from the job and sued under the MHRA.

The law requires that employers make a “reasonable accommodation to the known disability of a qualified person.” However, the court found that a “qualified person” must be able to perform the essential functions of the position and there was no reasonable accommodation for her to perform the heavy lifting, which was an essential function of the job.

Since the federal Americans with Disabilities Act pre-dates the MHRA, the court said it had to assume that the Minnesota Legislature consciously refrained from including the ADA’s interactive-process language in the act. This position differs from an earlier decision by the 8th U.S. Circuit Court of Appeals.
Corruption makes suicide workplace related and death benefits awarded – Mississippi

A judge has ruled in favor of the widower of a former state employee, awarding him his wife’s death benefits after she committed suicide. His wife had worked for the state Department of Marine Resources and had grown increasingly distraught over land purchases by the director that benefited family members and felt she was going to be blamed for the corruption.

After her first attempt at suicide failed, she was admitted to the hospital and began undergoing psychiatric treatment, but hanged herself months later. Psychiatrists testified that her employee’s participation in the corrupt land deal – and her concern that she would also be implicated – were clearly the reason for her distress. The judge ruled that the inappropriate actions of the department’s employees caused her to suffer a mental disorder that prompted her suicide and awarded close to $200,000 in death benefits.
Court reverses attorney sanctions but allows quashing of subpoena – Mississippi

In Wright v. Turan-Foley Motors, the appeals court cautioned attorneys against being overzealous in their attempts to prove an employer-chosen medical examiner is biased against their client. It found the Workers’ Compensation Commission was right to dismiss an attorney’s “overly burdensome and unduly broad” subpoena against an employer’s medical examiner, but should not have imposed a $5,000 penalty against the attorney or made him pay the medical examiner’s attorney’s fees.
Pre-existing conditions do not preclude benefits for future medical care – Missouri

In Morris v. Captain D’s, an employee suffered injuries in a car accident and additional injuries in a workplace fall. He quit his job several months later and filed for comp benefits. An administrative law judge found that he was permanently and totally disabled from the combined effects of his injuries and pre-existing conditions, which included knee, back, and neck injuries and high blood pressure and heart disease. The judge found, and the court of appeals agreed, that he that was entitled to future medical treatment on each claim.
Department store skin care specialist and model is employee of Skin Care Company – New York

In Colamaio-Kohl v. Task Essential Corp, the employee worked as a skin care specialist and spokesmodel at a Bloomingdale’s store and fell and suffered injuries while heading to the restroom. He later filed a comp claim and the appellate court upheld an award of benefits, noting that the Skin Care Company had control over his schedule, training, and dress code. Therefore, he was not an independent contractor nor employee of Bloomingdales, but an employee of the Skin Care Company.
Employee who worked only 16 days before injury receives an average weekly wage of $709.15 – New York

In Bain v. New Caps, an employee had earned just $2,950 in 16 days of employment when he was in a car accident. The company submitted a wage earnings statement indicating it had paid $2,950 during the 52-week period preceding the accident and that the employee had earnings of $2,121.81 from other employers during the same period. The law says a worker’s annual earnings shall consist of not less than 200 times the average daily wage or salary earned during the days when he was employed, as divided by 52. Thus, the appellate court found that Board’s determination of the AWW of $709.15 was correct.
No reimbursement to employer for overturned attorney fee – Pennsylvania

In County of Allegheny v. Workers’ Compensation Appeal Board, the Supreme Court ruled that an employer cannot recover attorneys fees erroneously paid to an injured worker’s lawyer. The employer was ordered to pay $14,750 in attorneys fees under Section 440 after the Workers’ Compensation Appeal Board determined that it had unreasonably contested its liability. However, the Commonwealth Court reversed the decision and also overturned the attorney fee award.

The county sought reimbursement for the erroneously awarded attorneys fees, but the Supreme Court found that the General Assembly, in enacting the Workers’ Compensation Act, did not provide any mechanism by which employers can recoup erroneously awarded counsel fees once paid.
Treating physician’s failure to mail medical records means UR company will automatically declare the treatment “not reasonable or necessary” – Pennsylvania

In Allison v. Workers’ Comp. Appeal Bd. (Fisher Auto Parts, Inc.), the Commonwealth Court found a utilization review doctor did not violate the due process rights of an injured worker by denying a medication and injection regimen after a treating physician failed to submit medical records to justify the treatments.The law requires physicians to mail documents to a utilization review organization (UR) within 30 days of receiving a company’s request. In past cases, the Commonwealth Court ruled that workers’ compensation judges don’t have jurisdiction to review UR denials due to a lack of medical records. This case argued that denying treatment due to circumstances outside the employee’s control when he had no way to appeal the decision was a due process violation, but the court disagreed.
Earning potential calculation clarified – Pennsylvania

In Smith v. WCAB (Supervalu Holdings PA), an employee was injured when falling items from a shelf hit him on his head. He suffered a cervical strain/sprain and received $662 per week, based on his average weekly wage. The employer filed to suspend his benefits when he refused to undergo a second surgery they deemed was highly likely to cure his disability. The judge said refusal to undergo the surgery was not a refusal of reasonable medical treatment and there was no guarantee that new treatment would decrease the disability. Therefore, he did not suspend benefits but agreed to modify based on a vocational rehabilitation counselor’s recommendations.

The counselor identified five open and available positions within the vocational and medical restriction and recommended modifying the benefits to $396.63. The court said the question of whether the jobs could serve as a basis for modifying benefits depended on whether the jobs were available to him and found that since the worker interviewed for two of the identified positions there is substantial evidence that the job is available.
Opinion of worker’s medical expert insufficient to rebut the opinion of treating doctor – Tennessee

In Goodman v. Schwarz Paper Co., an employee suffered a back injury and after receiving treatment was released to work with no restrictions. She later experienced radiating pain originating in her right sacroiliac and buttock and the doctor conducted a nerve conduction study, but the result revealed no abnormalities. Another doctor examined her at the request of her attorney, and opined that she had lumbar radiculopathy in addition to a traumatic back injury. He assigned a 12% impairment rating for her back and a 3% impairment rating for the bursitis, compared to the 2% assigned by her treating physician.

A trial judge found the new opinion was not enough to overcome the statutory presumption of correctness afforded to the original opinion and awarded benefits based on the 2% impairment rate. The Supreme Court’s Special Workers’ Compensation Appeals Panel agreed.

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HR Tip: Less stringent test for intern pay adopted by DOL

On Jan. 5, the Department of Labor (DOL) introduced a less stringent test to determine whether employers must pay their interns at least a minimum wage and overtime. The new approach involves a primary-beneficiary test and abandons a rigid test where six parts all had to be met for someone to be considered an unpaid intern and not an employee. Four appellate courts rejected the DOL’s six-part test and the newly adopted seven factor primary-beneficiary test was used by these courts.

The new test does not require each of its factors to be met and the seven factors to be considered are the extent to which:

  • Both parties understand that the intern is not entitled to compensation
  • The internship provides training that would be given in an educational environment
  • The intern’s completion of the program entitles him or her to academic credit
  • The internship corresponds with the academic calendar
  • The internship’s duration is limited to the period when the internship educates the intern
  • The intern’s work complements rather than displaces the work of paid employees while providing significant educational benefits
  • The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship’s end

The new standard is more flexible and aligned with court rulings. It’s expected to be easier to defend unpaid internships if they’re set up properly and there’s a good agreement between the intern volunteers and the employer. However, it is not a license to use unpaid interns without restraint. The test still exists and the question of who’s the primary beneficiary of the program – the employer or the intern – ultimately needs to be answered.

Companies that use internships should revise all program-related documentation-such as policies, advertisements and recruiting materials-to use the language of the seven factors in the primary-beneficiary test and the student intern and the employer should sign agreements incorporating the language.

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OSHA watch

Civil penalties increase to adjust for inflation

OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.

The updated regulatory agenda for fall 2017 contains fewer changes than the previous agenda

The fall agenda shows 16 regulations in three active stages: pre-rule, proposed rule and final rule – up from 14 in the previous agenda. Two rules were moved from “long-term action” status: amendments to the Cranes and Derricks in Construction Standard (now in the proposed rule stage), and Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records (final rule stage).

The following regulations moved from the proposed rule stage in the previous agenda to the final rule stage in the new agenda:

  • Occupational Exposure to Beryllium
  • Crane Operator Qualification in Construction
  • Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection
  • Technical Corrections to 16 OSHA Standards
  • Improve Tracking of Workplace Injuries and Illnesses

The status of Standards Improvement Project IV, (Lockout/Tagout) the only regulation listed in the final rule stage in July, has not changed.
New fact sheet: Housekeeping, sanitation practices in commercial fishing

The new fact sheet, Commercial Fishing: Safe Housekeeping and Sanitation Practices, states that over half of the recordable injuries in commercial fishing are preventable through good housekeeping and sanitary practices.
New publication warns of fatal confined space hazards on farms

An addition to the Fatal Facts series emphasizes the hazards of working in confined spaces on farms. These spaces include grain and feed silos, sump pits, and manure storage tanks. The fact sheet examines an incident in which a worker asphyxiated inside a whey storage tank.
Safety reminders for snow removal activities

Wintry weather has taken hold across much of the country and employers and workers are reminded to stay mindful of safety during snow removal activities.
Enforcement notes


  • International Polymer Solutions Inc. in Irvine received five citations related to failing to properly control hazardous energy when a moving machine part flew off and struck a worker in the chest, causing serious injury. Proposed penalties are $55,650.
  • Hadley Date Gardens Inc. in Thermal was cited for serious workplace safety and health violations following a bee swarm that stung and killed a tree worker. The company faces $41,310 in proposed penalties for failing to evaluate the worksite for hazardous bee and insect exposure, and failing to establish appropriate safety protocols, which include providing protective equipment and training.


  • Action Concrete Construction Inc. of Panama City Beach faces proposed penalties of $59,864 for exposing its employees to fall hazards and eye injuries.
  • A fatality investigation involving the death of five workers at the Big Bend River Station electrical power plant in Apollo Beach resulted in citations to Tampa Electric Co. and Gaffin Industrial Services Inc., totaling over $160,000. The fines related to energy control procedures and PPE.


  • Koch Foods of Gainesville L.L.C. was cited for multiple safety and health violations at its poultry processing plant, including a repeat violation for exposing employees to amputation hazards by failing to provide machine guarding. Proposed penalties are $208,977.
  • Stalwart Films LLC faces proposed penalties totaling the maximum allowable fine of $12,675, for the company’s failure to provide adequate protection from fall hazards. While filming the television show, “The Walking Dead.,” a stuntman was fatally injured after falling more than 20 feet.
  • Social Circle-based Goodyear Tire & Rubber Co. faces proposed penalties of $69,058 for exposing its employees to burn, hazardous energy, amputation, and caught-in safety hazards.
  • Thomson-based auto parts manufacturer HP Pelzer Systems Automotive Inc. faces penalties for safety violations and proposed penalties totaling $129,336 after an employee suffered a finger amputation.


  • A pallet manufacturer, New Lenox-based Supplyside USA, which operates as Prime Woodcraft Inc., faces $91,862 in penalties after an employee was injured while performing maintenance on equipment.
  • A mechanic, who alleged he was terminated after voicing concerns about unsafe working conditions at a bowling center owned by Lucky Strike Entertainment LLC, in Lombard, will receive a total of $40,000 in back wages as part of a consent judgment.


  • An administrative law judge affirmed citations against Fort Wayne-based commercial construction company, CME Corp, after a temporary employee was injured when he fell through an unguarded hole, but lowered the assessed fine to $6,500 in total penalties because of the company’s strong safety record. The company had contested the fine, arguing the opening was a point of access to the upper level from the pit and did not need to be guarded under the applicable regulations.


  • Schnabel Foundation Company faces $212,396 in proposed penalties for failing to protect employees against crushing hazards while they installed permanent foundation supports beneath the Woburn Public Library. A 2,600-pound rock dislodged from the foundation and fatally struck an employee.

New York

  • Marshall Ingredients LLC faces over $300,000 in proposed penalties after a temporary worker suffered a hand amputation. The company was cited for failing to protect employees against amputations and other hazards at its Wolcott facility. The temporary staffing agency, People Ready, was also cited with two serious violations for lack of hazardous energy control and fire extinguisher training. Proposed penalties totaled $24,020.

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Trends in combatting abuse and fraud in Workers’ Compensation

Fraud or abuse that might not reach the legal requirements for criminal sanctions happens in all aspects of the Workers’ Comp system. There’s employee fraud, employer fraud, health provider fraud, attorney fraud, and even insurer and claims adjuster fraud. The good news is that technology is making it easier to detect and many states have strengthened their laws to prevent fraud. In this article, we’ll look at employee fraud and health provider fraud.

Employee fraud

It’s important to recognize that only 1 – 2% of employee injuries are considered fraudulent and that injured employees can be scared and overwhelmed by the system and need the support and guidance of the employer to navigate to a quick recovery. But when fraud or abuse occurs it can be hard to detect and lead to unnecessary costs.

The most common types of employee fraud are faking injury claims, exaggerating injury or illness, claims for injuries incurred outside of work, failing to report earned wages while receiving temporary disability benefits, and prescription fraud, especially related to opioids. Malingering can also complicate an already complex claim and postemployment claims such as those involving cumulative trauma (CT) can be difficult for the employer to control.

Two recent phenomenon driving employees to cheat the system are expensive health care and long-term unemployment. While the evidence is anecdotal, high deductible health insurance plans, the ever-increasing costs of co-pays, and the growing uncertainty of coverage can incentivize the use of workers’ comp. In most cases, workers will have all medical costs covered and receive indemnity payments. Despite continued job growth and low unemployment, long-term unemployment persists among certain workers, and those having a tough time finding jobs that match their skill set or pay well may look to postemployment comp claims for much needed income.

There are many “red flags” that can help employers identify questionable claims and these should immediately be shared with the claims adjuster. However, proving that an injured worker is engaged in personal physical activities inconsistent with the alleged disability can be difficult. Today, a combination of the traditional approaches to fraud detection and technology make it easier and more affordable.

Here are eight things that employers can do:

  1. Have the injured worker put in writing the facts of the injury.
  2. Do a thorough investigation of the incident, including interviewing witnesses, taking pictures, documenting PPE in use, and so on.
  3. Make your employees comfortable with reporting suspected fraud and train supervisors in monitoring “workplace chatter.” Often, co-workers may have information or a sense that a co-worker is abusing the system.
  4. Use surveillance cameras in offices, parking lots, warehouses, etc. According to an Employers Holdings, Inc. survey, 24% of small businesses have installed surveillance cameras on their property. There was a widely publicized YouTube video of a Florida woman hitting herself on the head with a sprinkler head that had fallen on her desk and then claiming a workplace injury.
  5. Have a relationship with a trusted, competent occupational physician who understands your business and can foster the confidence of employees. This partnership will help identify possible fraudulent cases and control prescription abuse. Prescription fraud is easily mitigated by a doctor’s ability to check a prescription-monitoring data base, which 49 states now have in place.
  6. Monitor social media. It’s positively amazing what people will post on social media. If fraud is suspected, investigators can use software to search upwards of 200 social media sites. Employers need to be cautious about how they employ social media tools to investigate their employees’ behaviors and be sure that the evidence is admissible in court. While social media has been allowed in some court cases, this area of law is still in its infancy. Even if the admissibility of social media is questionable, it provides an indication that video surveillance, which is more likely to be admissible because it includes a time stamp, is warranted.
  7. Consider smart device data. In recent cases, police obtained a search warrant for the data from the cardiac pacing device in an arson investigation, a fitness tracker was used to discredit an alleged assault, and an Amazon Echo was accessed (unsuccessfully) as a witness to a murder. This area of law is largely untested, but should not be overlooked.
  8. Check job applicants carefully. Criminal backgrounds and a history of suspicious injury claims can be good predictors of potential fraud.

Physician fraud

For the dishonest physician, workers’ comp is fertile ground. Common examples of fraud include: submitting claims for services not provided, duplicate billing, upcoding or submitting claims for services with higher rates, unbundling or submitting claims for several services that should have been one claim, ordering excessive treatment or supplies, dispensing drugs for personal gain, receiving kickbacks in exchange for directing patients to other service providers, and operating “medical mills” with others who lack required credentials.

Some states such as California have enacted laws to aggressively pursue fraud. Since A.B. 1244, which requires the division’s administrative director to suspend any medical provider, physician or practitioner from participating in the workers’ comp system in cases that involve criminal activity or inability to perform duties safely, among other requirements went into effect Jan. 1, 2017, over 170 providers have been suspended.

To combat physician fraud, employers can:

  1. Have a relationship with trusted, competent occupational physicians who understand your business and can develop confident relationships with your employees.
  2. Vet independent medical reviews for quality. Complex claims that involve comorbidities can be feeding ground for exaggeration and malingering and often involve legal representation. According to a recent white paper by the Risk & Insurance Management Society Inc. a quality independent medical examiner (IME) can help mitigate losses. It’s important to hold an IME to a high standard.
  3. Report the suspected fraud.

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OSHA and EEOC regulatory updates and enforcement stats on first year of Trump administration


Rule and policy status

  • Maximum penalties for violations increased to adjust for inflation as of Jan. 2, 2018.OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.
  • General industry compliance date for Beryllium Standard – March 12, 2018
  • General industry compliance date for Silica rule – June 23, 2018
  • Certification of crane operators – Nov. 10, 2018
  • Elements of Walking-Working Surfaces & Fall Protection – Nov. 19, 2018
  • Rewrite of Lockout/Tagout (LOTO) remains active in the final rule stage under the Standards Improvement Project to make non-controversial changes to confusing or outdated standards. The proposal is to remove “unexpected energization” language from the standard.
  • Injury Data Electronic Submission. OSHA is working on a draft of a Notice of Proposed Rule Making (NPRM) to “reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule. While July 1, 2018 remains the deadline for the next data submission, OSHA recently changed its website to read: “Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time.” Pundits are speculating that changes will include increasing the thresholds for high hazard industries and small employers, limiting submission to Form 300A, and eliminating the Anti-Retaliation provisions.
  • There has been no pullback in the criminal prosecution of employers for willful violations that result in a fatality. A.G. Sessions has not archived the Yates memo, which was issued under the Obama administration and expanded individual accountability for corporate wrongdoing and encouraged use of the tougher environmental statutes. Many expect continued criminal prosecutions.
  • There has been a shift away from the enforcement-heavy philosophy of the Obama administration and an increase in compliance assistance programs and alliances. NBC News recently reported that the number of OSHA inspectors fell 4 percent over the first nine months of 2017; 40 inspectors had left the agency and not been replaced. Impact varied by region, with the Southeast region losing 10 inspectors and experiencing a 26% decline in inspections in the first eight months of the Trump administration. However, inspections in 2017 did increase overall.
  • To date, there has been no change to the expanded scope of the Obama administration’s repeat violation policies. However, this should be watched as many expect a return to the treatment of individual, independent workplaces rather than an umbrella corporate approach and a lookback period of three, rather than five years.
  • There is an effort underway to revitalize the Voluntary Protection Programs (VPP).
  • There was a significant shift away from public shaming. Only 45 press releases related to fines were published in 2017, compared to an average of 463/year for the previous five years. (Conn Maciel Carey L.L.P.)
  • Even though Fed OSHA is reducing the emphasis on enforcement, some state OSH programs, such as California, are increasing enforcement.

Enforcement stats

A recent webinar by the law firm, Washington-based Conn Maciel Carey L.L.P. took a look at OSHA enforcement action in 2017 and the results may surprise you:

  • While the number of OSHA inspections declined each year from 2012 to 2016, they increased 1.4% from 31,948 in 2016 to 32,396 in 2017
  • The number of violations issued has declined since 2010. Between 2016 and 2017, the number of violations declined from 59,856 to 52,519 or 12.2%
  • The percentage of inspections that resulted in no citations issued has remained relatively stable – between 23% and 27%
  • The average penalty per serious violation was $3,645 in 2017, up from $3,415 in 2016
  • The cases with proposed penalties of $100,000 of more jumped dramatically from 154 in 2016 to 218 in 2017, but million-dollar cases fell from an average of 8.4 per year to 6 in 2017
  • The number of repeat violations dropped from 3,146 in 2016 to 2,771 in 2017


Equal Employment Opportunity Commission

Rule and policy status

  • The U.S. District Court for the District of Columbia has vacated the EEOC’s wellness rule effective Jan. 1, 2019, instructing the agency that its goal of revising the rule by 2021 is too slow
  • The Obama rule for large companies to report wages by race and gender on the EEO-1 form was stayed by the Office of Management and Budget in August 2017, except for the new March 31 filing deadline. Covered employers must file their 2017 Form EEO-1 no later than March 31, 2018 and the snapshot period used to compile data should be one pay period during the period from October 1, 2017 to December 31, 2017
  • A pullback on efforts to expand Title VII to cover sexual orientation and gender identity discrimination is expected

Enforcement stats

  • Retaliation charges accounted for the largest number of charges (41,097) filed in fiscal year 2017 for the seventh consecutive year and represented 48.8% of all charges
  • While the overall number of charges filed declined by 7.9%, there was only a slight decline in retaliation charges
  • Following retaliation, race was the second most frequent charge filed with the agency in fiscal year 2017 (28,528) – 33.9% of the total. This was followed by disability, 26,838, or 31.9% of the total; sex, 25,605, or 30.4% and age, 18,376, or 21.8%.
  • The agency also received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment

According to the 14th annual Workplace Class Action Litigation Report issued by Chicago-based law firm Seyfarth Shaw L.L.P, key 2017 trends were:

  • The monetary value of top workplace class action settlements rose dramatically, with the top 10 settlements in various employment-related class action categories totaling $2.27 billion, an increase of more than $970 million from 2016’s $1.75 billion
  • Evolving case law precedents and new defense approaches resulted in better outcomes for employers in opposing class certification requests
  • There was no “head-snapping pivot” in filings and settlement of government enforcement litigation despite the change in administration. In fact, government enforcement litigation increased in 2017
  • Several key U.S. Supreme Court rulings over the past year were arguably more pro-business than past year’s decisions

Despite the change in the administration and the Trump deregulatory agenda, the enforcement stats suggest workplace issues are still a high priority for OSHA and the EEOC. Some speculate this will change when new leadership is fully in place. Others suggest that significant enforcement will continue since the language and requirements of the Occupational Safety and Health Act make deregulation difficult without legal challenges and even if the risk of being subjected to systemic EEOC litigation lessens, employers who do not have robust and effective anti-discrimination and anti-harassment policies and practices will remain at significant risk of litigation from private attorneys.

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Things you should know

Fatal work injuries reach highest level since 2008

Workplace fatalities increased for the third year in a row in 2016, according to the U.S. Bureau of Labor Statistics, rising to 5,190, a 7% increase from the 4,836 fatal injuries reported in 2015. Double-digit increases were reported in workplace violence and overdose fatalities.

Work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 2,083 fatalities, or 40% of the overall total. But violence and other injuries by persons or animals increased 23% to 866 cases, becoming the second-most common fatal event in 2016. Fatal work injuries from slips, trips and falls were the third-most common fatal event last year.

Texas was the state with the highest number of worker deaths (545), followed by California (376), Florida (309) and New York (272). In all, 36 states experienced increases in deaths due to workplace injuries in 2016.

Operation Airbrake puts 2,700 CMVs out of service for brake-related violations

An unannounced inspection blitz of commercial motor vehicles resulted in 14 percent being placed out of service for brake-related violations, according to the Commercial Vehicle Safety Alliance. On Brake Safety Day, which took place Sept. 7, CVSA inspectors checked 7,698 trucks and buses in the United States and Canada. The inspections resulted in 1,064 vehicles being taken out of service for brake violations and 1,680 (22 percent) for other infractions.

New video for tower workers: Safe use of snow-tracked vehicles

A new video highlights the proper operation of snow-tracked vehicles when accessing remote tower locations.

NIOSH withdraws proposed rule on respirator leakage standards

NIOSH has withdrawn a notice of proposed rulemaking that would have established standards for total inward leakage of half-mask air-purifying particulate respirators. According to NIOSH, the public comment period produced enough evidence to convince the agency to rescind the notice.



State News


  • A new law lowering the corporate officers’ ownership threshold for opting out of work comp coverage to 10%, from a current 15%, will be effective July 1.
  • The closed drug formulary for workers’ compensation will be updated quarterly by a committee of three doctors and three pharmacists who will meet several times a year, according to the Division of Workers Compensation.
  • The Department of Industrial Relations announced 376 workers died on the job in 2016, down slightly from 388 deaths in 2015 but still higher than the most recent low of 344 in 2014.


  • The Office of Judges of Compensation Claims reported that claimants’ attorney fees increased 36% in the latest fiscal year, following the state Supreme Court’s April 2016 decision in Castellanos v. Next Door Co., which reinstated hourly fees for claimants’ attorneys.


  • Medical payments per workers compensation claim were 24% higher than the median for other states examined in a new study by the Workers Compensation Research Institute (WCRI).


  • In 2016, there were 74 fatal work-related injuries according to the Census of Fatal Occupational Injuries (CFOI), 50% of which were transportation incidents.


  • Workers’ compensation medical payments are among the lowest in the country, according to a WCRI study medical payments per claim, limited to 2.2% per year, due in part to lower prices paid for professional services as well as lower payments per service for hospital outpatient services.


  • The Department of Insurance is recommending a 3% decrease in workers’ compensation insurance loss costs for 2018, on top of a 4% decrease that took effect on Aug. 1.


  • Minnesota experienced 92 workplace fatalities in 2016, a 24.3% increase over the prior year and 48.3% above the 2015 rate. Agriculture, forestry, fishing and hunting accounted for the most deaths, followed by construction.
  • The Workers’ Compensation Assigned Risk Plan has issued a notice regarding rates for new and renewal policies, effective Jan. 1 through March 31. Because certain classification codes have been eliminated and two new classification codes created, MWCARP is publishing new rate pages, effective Jan. 1. The eliminated classification codes are 1655, 1853, 3175, 3223, 4053, 4061, 4101, 6017, 7228, 7229 and 9149.The new classification codes are 7219 and 7225.


  • Workers die on the job at a rate double that of the national average, according to the National Employment Law Project. The national average is 3.4 deaths per 100,000 workers, while Mississippi’s rate is 6.8, the fourth highest number in the country for 2015, behind North Dakota’s more than 12, Wyoming’s 10 and Montana’s 7.5. The leading fatal work injuries by occupation were 35% for transportation/material moving and 17% for construction/extraction.

New York

  • Gov. Andrew Cuomo has signed legislation that will require workers’ compensation insurers to notify policyholders 30 days before hiking their renewal premiums by more than 10%.
  • The medical share of total workers’ compensation benefit costs dropped to 37% in 2015 and 2016 from a high of 42% in 2007, while the national average is 51.4%, according to a report by the New York Compensation Insurance Rating Board.

North Carolina

  • Medical payments per workers compensation claim decreased 6% per year from 2013 through 2015, according to the WCRI, likely due to fee schedule rules.
  • The Industrial Commission reminds stakeholders of a new employee misclassification statute that went into effect Dec. 31.


  • Acting Insurance Commissioner Jessica Altman has approved an emergency loss cost increase of 6.06%, effective Feb. 1, in response to the state Supreme Court’s Protz decision.


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Legal Corner

Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

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OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.

New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.

Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.

Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes


  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.


  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.


  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.


  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.


  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.


  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.


  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.


  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.


  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.


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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.”

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