Transcript Bed Bugs and Other Annoying Issues in the Workplace

Bed Bugs & Other
Annoying Issues in the
Workplace
The material provided herein is for informational purposes
only and is not intended as legal advice or counsel.
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BED BUGS
Bell Environmental Services
Peter Di Eduardo
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Bed Bugs
►Blood
feeders
►Common in U.S. before WWII
►Comeback due to:
 Changes in pest control practices
 Increased international travel
►Hitchhike in belongings
►Not known to transmit diseases
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Bed Bugs
► Hotels
► Apartments
& houses
► Hospitals & nursing homes
► Schools
► Office buildings
► And spreading to...
 Modes of transportation
 Movie theaters
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Bed Bugs
►¼
inch
► Reddish brown
► Oval, flat
► Sometimes
confused with
cockroaches or
ticks
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Compare
Bed Bug
German Cockroach
Nymph
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Compare
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Compare
Bed Bug
Tick
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Bed Bug Bites
► Appearance depends
upon sensitivity of
person
► No diagnosis without specimen
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Bed Bug Habits
►Flattened
bodies make them good
hiders
►Prefer to hide in seams, cracks and
crevices close to where people
sleep or spend majority of their time
►Hiding areas marked with fecal
spots (dried blood)
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Mattress & Box Spring
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Mattress & Box Spring
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Furniture
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Furniture
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Prevention?
► There
is no way to
prevent bed bugs
from infesting an
area
►
In residences,
encasements can
prevent them from
infesting mattresses
& box springs
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Infestation Sites
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Bed Frames
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Furniture
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Bed Frames
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Prevention  Early Detection
The best approach is to catch bed
bugs at the early stage of an
infestation
Know the Signs!
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Bed Bug Signs
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Stages of an Infestation
Early Detection
►Be
mindful of where you place your
belongings
►Inspect your belongings when you
return from traveling
►Inspect used furniture and other
used items before bringing indoors
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Early Detection
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Early Detection
Know the signs and contact
Bell Environmental Services
once you see them!
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Early Detection
► Dog
inspections
 Quick & over 90%
accurate
 Ideal for multi-unit
buildings or large
office areas
 Can limit treatment
areas
Roscoe
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Preparation
► Prep
List
Residential vs.
Corporate
► What to do with clutter
-- personal items,
clothing, toys, books,
etc.
► Treatment success
depends largely upon
how well an area is
prepared
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Preparation
►Do
not move infested items to
uninfested areas unless sealed in
plastic bags
►Do not move employees (patients or
tenants) to uninfested locations
until they and their belongings have
been inspected and dealt with
properly
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Preparation
►Normal
wash cycle with hot water
will kill all bed bug stages
►Running clothes or items through
the drier for at least five minutes at
most settings is also as effective
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Treatment
► Cryonite®/
InstantFreeze
 Dry ice “snow”
 Pesticide free
contact kill
 No residues –
immediate
reoccupation!
 Ideal for electronic
equipment &
sensitive environments
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Developing
Bed Bug Protocol
► Understand
seriousness of issue and
HR ramifications when suspicions of
bedbugs arise or specimen is
discovered
► Involve:
1. Senior management
2. Human Resources
3. Communications
4. Facilities Management
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Developing
Bed Bug Protocol
► Understand
Nature of the problem
 Bed bugs are not inherent to any building
 They’re Hitchhikers -- brought in with
employees, their bags, purses, luggage, or on
furniture
 Rarely is it the company’s fault that bed bugs
were introduced into a building (unless proper
action was not taken to eliminate a known
issue)
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Developing
Bed Bug Protocol
► Understand
Nature of the problem
 When 1 bed bug is sighted, acknowledge
that there may be more
 Bed bugs adjust their hours and feed on
people when they are on site rather than
their nocturnal schedule in a residence
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Developing
Bed Bug Protocol
► Proper




Diagnosis and Treatment Plan
Consult with a licensed PCO
How large of an area to treat?
Using certified canines
Importance of non-pesticide approach
Bed bugs biological immunities to pesticides
o Treatment limitations
o Liability
o Local Law 37 in NYC
o
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Bed Bugs in the
Workplace
Are you Prepared?
Presented by:
David Cassidy
The Current Situation
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Updated: Thu., Jan. 13, 2011
1 in 5 bugged by bedbugs
One in five Americans has either had an experience with bedbugs themselves or
knows someone who has.
Seventy-eight percent of respondents were most concerned about infested
hotels, while others said they were wary of picking them up at work.
"I was surprised just how pervasive the problem is," said Missy Henriksen, a
vice president at the National Pest Management Association, which
commissioned the online survey.
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Bed Bugs Found at New Jersey Movie Theater
Update: Tuesday, 31 Aug 2010, 4:02 PM EDT
Published: Friday, 27 Aug 2010, 6:47 PM EDT
MYFOXNY.COM – A movie theater at the Monmouth Mall in
Eatontown, N.J., has been reopened after being temporarily shut down
because of bed bugs found inside three of its auditoriums.
Two AMC theaters in New York City also recently had bed bug
problems: One in Times Square and one in Harlem.
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Employees who work in Goldman [Sach]'s Jersey City, N.J., office
tower have been moved from certain floors and ordered out of the
building at times because exterminators have been in checking and
spraying for bed bugs, said two separate sources at the firm. Neither
source was comfortable being quoted by name, citing company policy.
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A History of Bed Bugs
• Originally introduced to U.S. with the early colonists
• Thought to be gone from the U.S. after 1960
• Several theories to explain
comeback:
– Never really went away
– Increase in international travel
– Pest control treatments have
become more targeted and less toxic
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Office Memo: Bed Bugs Are Back
“They've moved out of the boudoir and
into movie theaters, retail stores,
libraries, firehouses, and inevitably, the
workplace.”
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Threats
• Damaged reputation
• Lost Revenue
• Decreased Productivity
• Litigation
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HR Issues With Bed Bugs
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Legal Issues
• Occupational Health and Safety Administration
(OSHA)
– OSHA Regulations
– Whistleblower status
• Americans with Disabilities Act (ADA)
– How Bed Bugs can trigger “disabilities”/accommodation
issues
• Family Medical Leave Act (FMLA)
– When can someone claim FMLA leave for bedbugs?
• Workers Comp/3rd Party Negligence
– The Workers Comp loophole and innovative plaintiff
attorneys
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Legal Issues, Cont’d
• Privacy and Defamation Issues
• National Labor Relations Act –
concerted & protected activity
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Policy Concerns
• Traveling Employees
• In-home Service Employees
• Company Uniforms
• Company Vehicles
• Leave Time for Extermination
• Extermination Costs – Who pays?
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Occupational
Safety and Health
Administration
(OSHA)
The "H" in OSHA Stands for
Health
• OSHA regulates more than just safety hazards in the
workplace.
• OSHA was founded to assure workers of both safe and
healthy working conditions.
• The health issues that OSHA monitors often are
overlooked.
• Health issues include indoor air quality, sanitation,
ergonomics, environment, workplace stress, and
workplace violence
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OSHA’s General Duty Clause –
“The Catchall”
29 U.S.C. § 654, 5(a)(1)
“Each employer shall furnish to each of his
employees, 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."
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OSHA’s General
Environmental Regulation
29 C.F.R. 1910.141(a)(5)
“Vermin control. Every enclosed workplace shall
be so constructed, equipped, and maintained, so
far as reasonably practicable, as to prevent the
entrance or harborage of rodents, insects, and
other vermin. A continuing and effective
extermination program shall be instituted where
their presence is detected.”
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OSHA’s Whistleblower
Clause
29 U.S.C. §660
• Section 11(c) of OSHA prohibits any person from
discharging or in any manner retaliating against any
employee because the employee has exercised rights
under the Act.
• Rights include complaining to OSHA and seeking an
OSHA inspection, participating in an OSHA inspection,
and participating or testifying in any proceeding related
to an OSHA inspection.
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When OSHA calls…
• Don’t Panic
– They can’t and won’t chase down every bedbug infestation
• Have a comprehensive written plan of attack
– Show that you are aware of the situation and are taking
steps to combat the problem
• Be sure to follow any OSHA recordkeeping
requirements that may be applicable to you
– Business establishments classified in a specific low hazard
retail, service, finance, insurance or real estate industry are
generally exempt
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Do Your homework!
• Does your building code have a vermin
provision that requires you to monitor
bed bug issues?
• Does your local health code require you
to keep your building free of insects?
• Do you have relevant policies, and if so,
are you following it?
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Americans with
Disabilities Act
(ADA)
Definition of “Disability”
Under the ADA
• The basic definition of the term “disability”:
– A physical or mental impairment that “substantially
limits” one or more “major life activities” of such
individual
– A record of such impairment
– Being regarded as having such an impairment
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“Major Life Activities”
• Caring for oneself
• Performing manual
tasks
• Seeing
• Hearing
• Eating
• Communicating
• Walking
• Standing
• Sleeping
•
•
•
•
•
•
•
•
•
Bending
Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Lifting
Working
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Bedbugs, Sleeping and the
ADA
• An impairment substantially limits an individual's
ability to sleep if sleep is significantly restricted as
compared to the average person
• An individual would not be substantially limited in
sleeping if she/he had some trouble getting to sleep
or sometimes slept fitfully because of a mental
impairment
• The determination of whether a particular person is
substantially limited in sleeping is very fact-specific
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EEOC Guidance
The Story So Far
When does an impairment substantially limit an individual's ability to
sleep?
An impairment substantially limits an individual's ability to sleep if, due to the
impairment, his/her sleep is significantly restricted as compared to the average person in
the general population. These limitations must be long-term or potentially long-term as
opposed to temporary to justify a finding of ADA disability.
For example, an individual who sleeps only a negligible amount without medication for
many months, due to post-traumatic stress disorder, would be significantly restricted as
compared to the average person in the general population and therefore would be
substantially limited in sleeping. Similarly, an individual who for several months typically
slept about two to three hours per night without medication, due to depression, also
would be substantially limited in sleeping.
See EEOC Psychiatric Disabilities Guidance at question 11.
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Can Bedbugs be a Disability
• Bedbugs themselves – Unlikely
• Side Effects – Definitely
– Lack of sleep
– Depression/Anxiety
– Delusory Parasitosis
• Patients acquire a strong delusional belief that they are
infested with parasites/insects/bugs
– Delusory Cleptoparasitosis
• A form of delusion of parasitosis where the sufferer
believes the infestation is in their dwelling, rather than
on or in their body
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ADA Accommodations
• Leave of absences to treat disability
• Hours of Work reassigned – sleeping
issues
• Other accommodations
– Work at home if workplace infested
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Extermination Issues
• Does the extermination procedure (use of
chemicals, etc.) comply with OSHA
regulations?
– Choose your professional carefully!
• Will the extermination procedure trigger
ADA-eligible illnesses with employees?
– Allergies
– Sick Building Syndrome
– Chemical Sensitivity
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Additional Issues
• Traveling Employees
• Service Employees
• Uniform Policies
• Company Vehicles
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Family Medical
Leave Act and
Other Leave Issues
When Leave is a Appropriate
Does Family Medical Leave Act Apply
– To employees with bedbugs?
– To employees seeking to avoid bedbugs?
• Can you send an employee home if he
or she reports having bedbugs at home?
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Employees with Bedbugs
• Rachael Schaar v. Lehigh Valley Health
Services Inc. – 3rd Circuit Case
• An employee can prove a serious health
condition with lay testimony
– Third Circuit does not require an employee prove
a serious health condition under the FMLA solely
by a medical provider
– Lay testimony can supplement medical evidence
to establish a serious health condition under the
FMLA
• This will be important when dealing with employee
claims of bedbugs
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Employees Seeking Leave to
Avoid Getting Bedbugs
• Department of Labor’s Guidance on H1N1 –
November, 2009 - Instructive
– The DOL noted that FMLA leave is NOT
available to avoid exposure to the flu.
– The DOL, however, encourages employee's and
employers to allow employees to stay home to
minimize the spread of the pandemic who are ill
or who have been exposed to someone who is ill
with pandemic influenza.
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Salaried Employees
• Be careful when salaried employees
take time off for bed bug remediation:
– Cannot deduct pay for partial day absences
– Cannot deduct pay for time off unless a
bona fide plan or policy exists
– Consult counsel – tricky issue
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Avoid “the Blame Game”
• Finding “the Source” is important, but
beware of potential discrimination claims
– Disparate Impact
– Disparate Treatment
• Avoid singling out employees and be aware
of the potential for:
– Discrimination Claims - Disparate treatment &
impact
– Harassment claims
• The Scarlet “B”
– Defamation claims
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Types of Discrimination
• Disparate Treatment -- treating applicants or
employees differently because of their membership
in a protected class. The central issue is whether the
employer's actions were motivated by discriminatory
intent.
• Disparate Impact -- focuses on whether or not the
employer has a policy or qualification that appears to
apply to everyone the same but, in fact, has a
significantly greater impact on members of a
protected class
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Invasion of
Privacy/Defamation
• Prudent employers should also make
sure that that they do not breach
employees’ privacy
• Prudent employers will limit discussion
and disclosure of bed bugs
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Workers Compensation
Exception and Third
Party Litigation
Workers Compensation
• If an employee claims injury from
bedbugs at the workplace, workers
compensation should cover the employer
– Note: Employees can sue their employers
and their co-employees for intentional
misconduct, for deliberately intentional acts
and/or grossly negligent, reckless, willful or
wanton misconduct. Bryan v. Jeffers, 103
N.J. Super 522 (App. Div. 1968).
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Third-Party Negligence
Lawsuits
• NORRISTOWN — A woman forced from her Norristown apartment
after it became infested with bedbugs is suing a local retail store that
leased her furniture that allegedly contained the insects.
• Robin Boyd, who moved to Pottstown in June, filed a civil lawsuit
against Aaron’s Sales & Lease, located at 714 Markley St., in
Norristown. The woman leased a bed frame, headboard, dresser and
nightstand from the store on Aug. 31, 2009, and after taking a one-hour
nap that day noticed she had bug bites on her arm, according to the
lawsuit.
• The infestation caused her to miss work at a local nursing home, and
she eventually lost the job. At some point, perhaps due to stress from
the situation she began losing clumps of hair and took to wearing a
wig. She began losing weight and was prescribed medication for
depression. During the Christmas holiday, she isolated herself at her
Norristown residence to prevent infesting her relatives’ homes.
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Protection and
Policies
First & Foremost
• This is an HR issue
– Morale issues
– Productivity issues
– Legal issues
• Education is critical
• Facilities/maintenance is important but
secondary
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How to Avoid Litigation
• Have a Policy and Follow It
• Documentation
• Perform regular inspections
and implement preventative
measures
• Provide education for staff
• Have a remedial action plan
in place now
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Do You Have a Bed Bug
Policy?
• Information about bed bug prevention
• How to react when learning about the
presence of bed bugs
– Important to assist management in proper
response
• Clarification on leave policy in the event of
infestation
– Are there specific work-from-home policies & for
whom is this an option?
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Handling Complaints
• Identify an expert/point person who can
handle complaints compassionately and
logically
• Be open and resolution-oriented
• React quickly and seek professional help
• Document your procedure, including:
complaint, inspection, confirmation, cleaning,
treatment, future prevention, and follow up
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Don’ts
• Don’t try to silence employees about the problem, as
this could lead to whistleblower claims or, in the
Union context, NLRA violations
• Don’t play the blame game, as this could trigger a
defamation claim or a discrimination claim
• Don’t “over react” -- Supervisors must be very
careful in how they react to employees that may have
brought bed bugs onto the premises to not foster
panic
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The Scarlet B
• Do Not Discriminate
• Do Not Retaliate
• Do Not Shun, Blame or Defame!
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Protected & Concerted
Activity
• Employer cannot fire employees for
engaging in protected, concerted acts
(Section 7 Rights)
– Concerted refusal to perform dangerous work
(even if no union)
– Discussion of work issues, at work or on a blog
or anywhere
– Partial strikes
• Discussion of bed bugs in the workplace
would be protected and concerted
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To Pay or Not to Pay
• No Good Deed Goes Unpunished –
what one gets, all must get!
• Home Extermination Guidelines:
– Must be a uniform rule/policy/practice
– Written policy and guidelines suggested
– Do Not Discriminate or Play Favorites
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Employer Liability in the
New Millennium:
Facebook, Texting and
FLSA Enforcement
Presented by:
Chris Elko
A Brave, New World…
• 400 Million active users
• 3 Billion photos each month
• 60 Million status updates each day!!!
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Facebook and Twitter – A
Primer
• Facebook
– Status Updates
– Walls
– Messages
• Twitter
– Status Updates
• Automatic Soundbite
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So What?
• Liability
• Marketing and Promotion
• Policy
– What are you doing?
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Update Status Here:
“I can’t believe my ______ assistant
messed up ANOTHER Settlement
Agreement! She isn’t even literate!
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Hostile Work Environment
and Title VII
• Hostile Work Environment
– One severe act of harassment or several
minor acts of harassment
• Are your employees “networked”
– Supervisors must be careful
• Cyber-flirting
• A Facebook post lasts forever
• Title VII
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Morale
• Gossip
– A “connected” workforce can result in a
clogged HR Department
• When an employee leaves…
– Defamation?
• Damages
– Non-Solicit
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Confidentiality
• Are you waiving/violating a privilege?
– Attorney client
– Doctor patient
• HIPAA
– Nurses fired for facebook postings
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Other Important Issues
• Doe v. XYC Corp.,
(2005)
– 3rd Party Liability
when an Employer is
on notice of
pornographic use
– Policies must be
enforced!
• FTC and Consumer
Fraud issues
– Make sure your
employees are not
impacting the
credibility of your
brand!
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Discovery Issues
• No special privacy right to social media
– PA: McMillen v. Hummingbird Speedway,
Inc.
• No expectation of privacy for Facebook or
MySpace accounts
– NY: Romano v. Steelcase Inc.
• “Think before you speak, or in this case, before
you type.”
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Employee Rights
• Whistleblowers
– Cannot gag employees complaining about
OSHA violations or alleged Title VII
violations
• Is the communication unrelated to work
– NY protects off-duty activity
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Employee Rights in the
Labor Context
• Labor is focusing on social media as a means
of “spreading the word”
– Dues money is used to sponser Facebook pages
• Is the communication considered concerted
activity?
– An unlawful policy “prohibited employees from
making disparaging remarks when discussing the
company or supervisors.”
– An unlawful policy “prohibited employees from
depicting the company in any way over the
internet without company permission.”
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Social Media Policy
• Be inclusive – Make sure that your policy includes all
social networking websites, blogs and “wikis”, used
professionally or personally
• State that the Employee Code of Conduct applies to
social media commentary involving the Company or
its employees
• Be clear that employees may not disclose confidential
or proprietary information online
• Reserve your right to request that certain posts be
deleted if they include inappropriate comments
relative to the Employer
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New OSHA
“Distracted
Driving Initiative”
Secretary of Labor
Hilda L. Solis
• "It is imperative that employers
eliminate financial and other incentives
that encourage workers to text while
driving."
• "It is well recognized that texting while
driving dramatically increases the risk
of a motor vehicle injury or fatality."
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Where Cell Texting Is
Banned
100
OSHA Violation – The Rule
“When OSHA receives a credible complaint that
an employer requires texting while driving
or…organizes work so that texting is a
practical necessity, we will investigate and
where necessary issue citations and penalties
to end this practice.”
http://www.osha.gov/distracted-driving/index.html
101
OSHA Violations – The Rule
– Expanded
• Create a policy
– “It is your responsibility and legal obligation to create and
maintain a safe and healthful workplace, and that would
include having a clear, unequivocal and enforced policy
against the hazard of texting while driving.”
• Do not incentivize
– “Companies are in violation of the Occupational Safety and
Health Act if, by policy or practice, they require texting
while driving, or create incentives that encourage or
condone it, or they structure work so that texting is a
practical necessity for workers to carry out their job.”
102
Policy Advice
• Review the OSHA Distracted Driving
Website
• Review the Department of Transportation’s
Distracted Driving Website
• Recognize October’s “Drive Safely Work
Week”
• Consider whether your employees are
incentivized to text while driving
103
FLSA – Bad Weather
and the Attorney
Referral System
Bad Weather
The Office is Closed
• Exempt (Salaried) Employees
– Cannot deduct pay for quality/quantity of work
• Measured on a weekly basis
– Accrued time off or vacation time may be
deducted
• Practical issues arise with December closures
• Salary must still be paid
• Morale?
• Non-Exempt Hourly Employees
– No requirement to pay for hours that would have
been worked but-for inclement weather
105
Bad Weather
The Office is Open
• Exempt Employees
– The employee is not “ready, willing and able” to
work, even if it is beyond his control
– The Employer may deduct one full day pay
– No Partial Day Pay!
• Non-Exempt Hourly Employees
– No requirement to pay
– May require use of accrued time off
106
Bad Weather
Policy Considerations
• Who makes the decision to close and how it is
communicated
• Can employees bring children to work when school is
closed
• Define work-from-home options when available
• Determine what policy governs when an employee
cannot get to work when the office is open
• Determine whether non-exempt employees may
“make-up” time within the same work week
107
DOL/ABA Attorney Referral
Program
• Initiative began in December of 2010
• Instituted by Vice President Joe Biden
and supported by the American Bar
Association
• Goal is to provide expanded assistance
to FLSA/FMLA claimants and alleviate
the DOL workload
108
DOL/ABA Attorney Referral
Program
• Old System
– 2010:
• The DOL added 350 new investigators
• The DOL received 40,000 claims in 2010
– 25,000 of those claims requested assistance with
minimum wage, overtime, or family medical leave
claims
– 16(b) Letter
• Violation occurred
• “Not suitable for Court action”
109
DOL/ABA Attorney Referral
Program
• New System
– When claimant’s FLSA or FMLA claim is
rejected by the DOL
• Claimant provided with toll-free number to
reach a FLSA attorney
• Claimant decides whether to pursue
independent cause of action against the
employer
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DOL/ABA Attorney Referral
Program
• When will a claimant be referred to a private
attorney?
– Complaint Intake
– Complaint Review
• Before investigation
– After the DOL attempts to reconcile the issue
– At the conclusion of the DOL investigation
• Complainant will receive the entire investigation file,
including documents, findings and amount of back-pay
owed by the employer
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Questions & Answers
Session
Thank you for coming!