Legal Issues in the Workplace.

Coverage

Virtually all employers, except those governed by OSHA- approved state occupational safety and health plan.  State plans generally cover all employers and employees within an affected industrial, occupational, or hazard grouping; employers excluded for good cause from state plans are covered under the federal OSH Act.

Discrimination

Employers cannot discharge or otherwise discriminate against employees for exercising their rights under the act.

Exemptions

Employers may apply for variances – that is, exceptions to the rule, standard or regulation – in the following circumstances:

• When an employer does not have enough time or personnel to comply with a standard by its effective date
• When an employer’s practices or conditions, although different from the federal requirements, are as safe and healthy as those required by the federal standard
• If an employer needs a variance to participate in an approved work safety or health experiment
• If compliance would seriously impair national defense.

Compliance

Employers must comply with OSHA standards and the general duty clause.  The general duty clause entitles employees to work environments and assignments free from hazards recognized as causing or likely to cause serious harm or death.  OSHA standards include initial, permanent, and emergency temporary standards.

Employees also must “comply with occupational safety and health standards and all rules, regulations, and orders” that apply to workers.

Recordkeeping

Recordable cases: Employers with 11 or more employees must record the following:

• Fatalities, regardless of the time between injury and death
• Lost workday cases, other then fatalities, where occupational injury or illness has caused the employee to miss work.
• Nonfatal cases without lost workdays that (1) result in transfer to another job or termination of employment, (2) require medical treatment beyond first aid, (3) involve loss of consciousness or restriction of work or motion, or (4) are diagnosed illnesses reported to the employer but not classified as fatalities or lost workday cases.  Required forms: Employers with 11 or more employees must maintain the following forms:
• OSHA Form 300: Log and Summary of Occupational Injuries and Illnesses is used to document recordable occupational injuries/illnesses within six workdays after discovery of the incident and must be maintained on a calendar (Jan1- Dec 31) basis.
• OSHA Form 301: Supplemental Record of Occupational Injuries/Illnesses provide detailed information on the recordable incidents and must be available for inspection within six workdays of discovering the incident.  Employers may substitute workers’ compensation, insurance, or similar forms if it contains all information required by OSHA or if the employer adds the missing information. How long to keep records: Employee medical records, if maintained, must be kept for duration of employee’s tenure with the company, plus 30 years.  Employee exposure records, if maintained must be kept for at least 30 years.

Reporting

All Employers: Employers must report all job accidents causing an employee’s death or hospitalization of three or more employees.  The employer must make this report, by phone or in person, to the OSHA area director within 8 hours of the accident.  The employer can also use the OSHA toll-free central number (800 321-OSHA)

Selected Employers: Employers selected to participate in a statistical report program or period surveys of occupational injuries/illnesses must submit required data and forms.

Posting

OSHA Poster: must be posted in the workplace in whatever space is normally reserved for employee notice.  OSHA Form 300A: must be conspicuously posted from Feb. 1, to March 1 of each year.  OSHA Citations: must be posted for three days or until violation is abated whichever is longer, at or near each place a violation has occurred or where the citation(s) is visible.
 
Petition for standard record keeping variances: Employers must post summaries for petitions for variances from OSHA standards or record keeping requirements.  Petition for modification of abatement: Employers must post for 10 days a copy of petitions for modification of abatement.

Other Comm.

Employers must notify employee representatives of inspections when given advance notice.  With permission OSHA may contact representatives directly.

Employers must give affected employees and their representatives a copy of petitions for modification of abatement or variances from record keeping or standards.  At job hire and annual after hire, employees must be told where medical and exposure records are kept, who is responsible for keeping and providing access to those records, and what rights of access to these records employees have.  Employers must give employees or representatives copies of exposure or medical records within 15 workdays of the request.

Penalties

Civil: Up to $7000 fine for each non-serious and serious violation; up to $70,000 for each willful or repeat violation Criminal: Up to $10,000 fine and six months in jail for first offense in which an employer’s willful safety violation causes an employee’s death; up to $20,000 and one year in jail for the second offense.

Enforcement and Administration

OSHA can enter and inspect any workplace by the OSH Act, with or without advance notice to the employer.  However, inspections must take place “at reasonable times, within reasonable limits, and in a reasonable manner.”  OSHA generally chooses to inspect a workplace based on the nature of the business, employee complaints, or random selection.  OSHA also can request the National Institute for Occupational Safety and Health, an agency of the Department of Health and Human Services, to inspect a workplace for environmental hazards.

What is Workplace Violence?

Any physical assault, threatening behavior, or verbal abuse occurring in the workplace. The workplace may be any location either permanent or temporary where an employee performs any work-related duty. This includes, but is not limited to, the buildings and the surrounding perimeters, including the parking lots, field locations, clients’ homes and traveling to and from work assignments.

Types of Workplace Violence.

Generally, workplace violence is broken down into 5 categories:

• Violence against bystanders at a robbery or other commercial crime.
• Violence against law-enforcement and security officers.
• Domestic and misdirected affection cases.
• Employer-directed situations (targets may be supervisors, managers, co-workers).
• Terrorism and hate crimes.

The mechanics of these acts include but are not limited to: Physical assaults; Beatings/stabbings; Shootings; Rapes; Attempting to cause physical harm, (i.e., striking, pushing, or other aggressive acts against another person); and verbal threats of harm either actual or implied.

How big is the Problem?

The most common form of workplace violence is simple assault, with over 1.5 million cases reported each year. This is followed by an estimated 396,000 aggravated assaults and 51,000 sexual assaults each year. Homicides account for nearly 1,000 workplace deaths each year.

The Department of Justice, estimates that workplace violence will impact over 500,000 employees and result in 1,175,100 lost workdays each year. Further, the resulting lost wages will cost employers $60 million. The un-measurable factors of lost productivity, legal expenses, and property damage may push actual costs to the employer into the billions of dollars.

According to the Bureau of Labor Statistics almost two thirds of the non-fatal assaults occurred in service industries, such as nursing homes, hospitals, and residential/social care facilities; while retail establishments account for fifty percent of the homicides.
Regulations

The Occupational Safety and Health Administration (OSHA), has developed guidelines to assist employers in dealing with the threat of workplace violence. These guidelines, while not a new standard, are a recommendation for preventive actions employers should take. From an enforcement standpoint, the OSH Act of 1970, in section 5(a)(1) holds that the employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;” which references all hazards including workplace violence.

Regardless of motivation, an employer needs to address the potential for workplace violence. The most effective programs contain four key elements.

Management Commitment and Employee Involvement

In order for any prevention program to be effective, management must clearly support the program. This commitment provides the motivation for the front-line supervision and employees, to make the program work.

Key elements in this commitment are:

• Providing the employees with a system to present and correct workplace safety and health issues.
• Supporting the front-line supervision in the ongoing training process.
• Providing to all employees a clear and concise policy on workplace violence.
• Providing systems whereby management and labor are both accountable for the effectiveness of the program. This includes metrics for performance and corrective action.

The written program should clearly outline the responsibilities for both the employer and the employee. Additional areas that are critical for program success are:

• Language that clearly defines the employers policy of zero-tolerance for workplace violence, verbal and nonverbal threats and related actions;
• Outlines the process by which employees can report acts or alleged acts of workplace violence;
• Clearly prohibits any punitive action against employees who report workplace violence;
• Provides the corrective action steps that management will take to address reports of violence. This includes the investigation process, the formal review, and possible actions upon confirmation of a policy violation.The policy should also outline a comprehensive plan, whereby the employer will continually enhance its efforts to prevent workplace violence.

Worksite Analysis

The worksite analysis is a step-by-step review of all aspects of the workplace. This review is focused on looking for potential security breaches that would allow for or enhance the likelihood of workplace violence.

Develop a Threat Assessment Team (TAT)
A Threat Assessment Team is a group of motivated employees, empowered by the employer to review all aspects of the workplace and recommend corrective actions to prevent workplace violence. The team is generally comprised of representatives from senior management, operations, human resources, security, and safety.

In performing the assessment, the team will review both records of the company and the physical work environment to determine the threat level. This review should include at a minimum:

• Analyzing and tracking records. (OSHA Logs and Worker Compensation Loss Reports are a good source for this information.)
• Monitoring trends and analyzing incidents. (Diagram incidents of workplace complaints and injuries. Often this will lead a team to a trouble spot.)
• Screening surveys. Survey employees to determine if they are aware of hot spots in the workplace. Compare overtime records to disciplinary actions. Often the increase in hours worked will result in stressors, leading to employee relations problems.
• Analyzing workplace security. Get out of the office and into the workplace. Walk the floors and take an outside tour, both of the building and the property line. Visit the workplace during all shifts and at various times. Often an after hours threat is not evident during the normal production shift.

Further, the team should perform a physical audit of the worksite. This audit must include a review of the employee’s movements, and facility access. Particular attention should be paid to parking areas, outside break locations, and late night access to the facility.

Hazard Prevention and Control

Prevention and damage control are full-cycle activities.  Meaning, to be effective, prevention activities (Threat Assessment) must be continually reevaluated and adjusted.

Preventive Actions
During the threat assessment, the team will find areas that have a higher risk than others. Actions, which an employer can take to reduce risk, are:

• Alarm systems and other security devices;
• Metal detectors;
• Safe rooms for employees to use during emergencies;             
• Closed-circuit video recording for high-risk areas; and
• Barriers between the public and employees, such as walls, glass, and locked doors.

Post Incident Preparedness
While the intention of every employer is to prevent acts of violence in the workplace, it is critical that every employer be prepared to handle the post mortem of an incident. Key areas of concern following a workplace violence incident are:

• Getting medical care for injured victims. Ensure that the facility is properly equipped to handle basic first aid. Develop an Emergency Action Plan to assist the employees in handling incidents and interfacing with the local responders.
• Secure the premises – safeguard evidence.  Develop a procedure to secure the facility from unauthorized persons.  Include in that procedure, the steps to be taken to transfer evidence to local authorities.
• Prepare an incident report immediately.  Establish a company policy on Press Releases.  DO NOT ALLOW THE PRESS ACCESS TO THE FACILITY.
• Arrange appropriate psychological treatment for victims.  A pre-existing EAP will be a valuable tool should an incident occur.

Additionally, make contact with local crisis counselors in advance and arrange for their response should an incident occur.

Training and Education

All employees should receive training on the scope and intent of the workplace violence policy. Supervisory employees should receive in-depth training on recognizing potentially violent employees, and conflict resolution. The person delivering the training should have a sufficient background in workplace violence to present the material in positive fashion, while focusing on the seriousness of the matter.

Training should include an emphasis on alternate dispute resolution methods, and de-escalation techniques. More importantly, every training session must re-enforce the company’s “zero tolerance” commitment.

What does it mean to be “employed at-will”?

It means that you are free to terminate an employee at any time, for any reason or for no reason at all.  Accordingly, an employee cannot sue you for firing him unless he can articulate a limitation on your right to discharge.  In most states, the limitations are narrowly tailored.  For example, employers are generally prohibited from discharging employees when the discharge violates some broad public policy.  That is, an employee may be allowed to sue his employer if the employee is terminated for refusing to commit a crime or prevented from complying with a statutory duty.

Of course, an employer may enter into a contract with an employee and therein voluntarily agree to limit its right to discharge an at-will employee.  In those instances, the employee may sue the employer for breach of contract if the employer fails or refuses to abide by the terms of the contract.  The nature of the employee’s claim will depend on the nature of the contract in question.  In some instances the contract will be express (e.g., a written agreement between the parties) and in others it will be implied (e.g., an obligation that arises from an employee manual or other acts or statements made by the employer).

At will employees may also sue their employers if a statute specifically provides for a right of action.  Thus, for example, an employee may sue his employer if his termination violates an applicable antidiscrimination statute, like Title VII of the Civil Rights Act of 1964.

The importance of an at-will disclaimer that employee manual

As mentioned above, an employer may inadvertently limit its right to discharge at will employees by making promises to employees in an employee manual.  For example, in some states, courts have recognized the right of an employee to sue an employer when the employer fails or refuses to abide by the terms of a progressive discipline policy.  These types of claims can generally be overcome if the employee handbook contains a clear statement that all employment is “at will” and that the employer is free to discharge, with or without cause.

There is no single federal law regulating privacy issues for private employers on a broad basis; however, there are various federal laws that regulate specific aspects of an employee’s privacy that arise during the course of employment.  There are also state and common law (court-created law) considerations that impact workplace privacy.

As a general rule of thumb, for an employer to try and avoid invasion of privacy complaints by employees they should ensure that:

• Any information gathered during the employment relationship serves a businesses’ “need to know”,
• The information is gathered by the least intrusive method,
• The information is maintained in a confidential manner designed to prevent unauthorized access,  and
• That information is not used “unfairly” by the employer or a third party.

When dealing with any of the following areas, be aware that there are ramifications with regard to an employee’s privacy:

• Personnel Records/Files (see Sample Human Resource Records Policy)
• Medical Information
• Credit and Financial Information
• Education Information
• Wire, Oral and Electronic Communications
• Alcohol and Drug Abuse diagnosis, treatment or other information
• Alcohol and Drug testing
• Personal History Questionnaires
• Surveillance and Investigations
• Using an employee’s name and/or likeness without their written permission
• Employment Application
• Responding to requests for employee information by third parties
• Searches (body, personal property, or company property)
• Anti-Trust Law Compliance
• Disclosure of Union Activity
• Off-duty Activity or Behavior (i.e. Smoking)
• Business Ethics (see Sample Business Ethics And Conduct Policy and Acknowledgement Page)
• Confidential Information Leaks (see Sample Confidential Information Policy)

General Record Keeping Requirements in U.S. Workplace Law

The number in the grid below represents the maximum number of years any federal law requires keeping the type of records described in the left-hand column.

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Virtually all employers are covered by state or federal legislation which governs the payment of compensation to employees.  These statutes define “hours worked” for which certain employees must be compensated, set the minimum rate of compensation for hours worked, and require the payment of overtime in certain circumstances.  These statues also address when and how employees must be paid, whether and when an employer may take deductions from employees wages, the circumstances in which an employer may employ minors, and record keeping responsibilities of employers.

The Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., has been the preeminent federal wage and hour employment legislation since its passage in 1938.  Amended numerous times since then (including 2004), the FLSA sets forth the applicable minimum wage which covered employers must pay non-exempt employees.  The FLSA also imposes a duty on covered employers to pay non-exempt employees at the rate of time and one half their “regular rate” for “hours worked” in excess of 40 per workweek.  The FLSA also defines those employers and employees who are exempt from its minimum wage and overtime provisions. Finally, the FLSA imposes record keeping and document retention duties upon employers.

The Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d), an amendment to the FLSA, require “equal pay for equal work” for men and women.  The EPA prohibits employers from discriminating on the basis of sex in paying wages.  Where male and female employees for the same employer and at the same establishment perform work requiring equal skill, effort and responsibility, and under similar working conditions, it is a violation of the EPA to pay female employees lower wages, unless the wage differential is due to (1) a seniority system, (2) a merit system, (3) a production system which measures earnings by quality or quantity of work, or (4) a differential which is based on a factor other than sex (e.g. shift differential).

There are numerous regulations published by the federal Department of Labor and state Department of Labor and Industry regarding definition of “hours worked,” compensation of waiting or on-call time, sleeping time, meal periods, overtime compensation, rest periods, meetings and training, travel time, and the like.

Overtime Exemptions

Under both federal and state wage and hour law, certain employees may be exempt from the minimum wage and/or overtime requirements imposed by these laws.  The most common-place exemptions are the so-called “white collar” exemptions—executive, administrative, and professionals.  Job title alone is not the only factor used to determine whether the exemption applies and depends on whether the employee is paid on “salary” basis and whether the employee’s specific duties render him or her ineligible for overtime compensation.

Executive Exemption

A bona fide executive who is exempt from the minimum wage and overtime requirements of federal and state wage and hour laws has the primary duty of managing the business or a department of the business where he/she works; customarily and regularly directs the work of at least two employees; has authority to hire, fire and promote or can effectively recommend the same; customarily and regularly exercises discretion in the performance of his/her duties; and receives a minimum salary set by the FLSA.

Administrative Exemption

This exemption generally is used for employees who themselves lack
supervisory duties, but who are assistants to those who do possess traditional measures of supervision.  For example, an executive assistant, although he/she does not have the primary duties of managing a business or regularly directing employees in the performance of their job, nevertheless may be exempt from the provision of the FLSA as an administrative employee.

An administrative employee performs office or non-manual work directly related to management operations; customarily and regularly exercises discretion and independent judgment with respect to matters of significance; and is paid a set minimum salary.

Professional Exemption

The professional employee’s exemption generally applies to those employees who perform work, which requires specialized study at an institution of higher learning, as compared to an apprenticeship or trades program.  A professional employee performs work which involves advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.  The exemption goes on further with regards to creative professionals in that their primary duty must require invention, imagination, originality or talent in a recognized field of artistic or creative endeavor; and is paid a salary set by the FLSA except for outside sales employees, teachers and employees practicing law or medicine, for whom no salary requirement applies.

Computer Professional Exemption

Computer professionals (programmers, network support specialist) are required to be paid at least a certain minimum set hourly rate or a salary or fee basis per week, but are not required to exercise discretion and independent judgment.

Outside Sales People

Primary duty must be to make sales or obtain orders or contract for services and the employee must regularly work away from the employer’s place of business while performing his duty.

Additionally, highly compensated employees performing any one or more of the exempt duties and responsibilities of an executive, administrative, or professional classification and are paid a certain minimum amount will be considered exempt.

The new regulations also revised “permissible” payroll deductions to salaried-exempt employees.  Deductions from pay are now permitted when an exempt employee:

1.  Is absent from work for one or more full days for personal reasons other than sickness or disability;

2.  For absence of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness:

3.  To offset amounts employees receive as jury or witness fees or for military pay;

4.  For penalties imposed in good faith for infractions of safety rules of major significance;

5.  For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;

NOTE:  An employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.