Transcript www.ntma.org

2011 NTMA Fall Conference
Labor & Employment Update
ARE EMPLOYERS UNDER ATTACK TODAY?
Presented by:
Thomas O. McCarthy
McMahon Berger, P.C.
2730 North Ballas Road
Suite 200
St. Louis, Missouri 63131
(314) 567-7350
[email protected]
The Perfect Storm
Employers Are Caught
in the Perfect Storm
1) Economy
2) Congress
3) Courts
Is Employment At-Will Dead?
Employment At-Will

As an employer, I can take whatever
action I want against an employee because
employment is at will, right?
Federal Employment Legislation
1935 – National Labor Relations Act
1938 – Fair Labor Standards Act
1963 – Equal Pay Act
1964 – Civil Rights Act (Title VII)
1967 – Age Discrimination in
Employment Act
1970 – Occupational Safety and
Health Act
1974 – Employee Retirement
Income Security Act
(ERISA)
1974 – Vietnam Era Veterans’
Readjustment Asst. Act
1986 – Immigration Reform and
Control Act
1986 – Consolidated Omnibus
Budget Reconciliation Act
(“COBRA”)
1988 – Employee Polygraph
Protection Act
1990 – Americans with Disabilities
Act
1990 – Older Workers Benefits
Protection Act
1991 – Civil Rights Act
1993 – Family and Medical Leave
Act
1996 – Health Insurance Portability
and Accountability Act
2008 – Genetic Information
Nondiscrimination Act
2008 – ADA Amendments Act
2009 – Lilly Ledbetter Fair Pay Act
Erosion of Employment At-Will

State statutes
◦
◦
◦
◦
Discrimination/Retaliation/Harassment
Wage and hour
Leave rights
Workplace safety
State Law Wrongful Discharge Claims

Breach of Implied Contract
(Handbooks and written policy statements)

Breach of Public Policy
(Constitution, statute, regulation)

Breach of Implied Covenant of Good
Faith and Fair Dealing
Employment Litigation
Recent Jury Discrimination Awards
Case Name
Discrimination Type
Award
Saffos v. Avaya Inc.
Age Discrimination
$10.7 million
Noyes v. Kelly Services
Religious Discrimination
$6.5 million
Myers v. Central Florida
Investments
Sexual Harassment
$5.4 million
McKenna v. City of
Philadelphia
Race Discrimination/
Retaliation
$5 million
Morales v. Los Angeles
County MTA
Disability Discrimination
$2.25 million
Traxler v. Multnomah
County, Oregon
FMLA Interference/
Retaliation
$1.8 million
Eickhoff v. Union Pacific
Railroad
Sexual Harassment/
Retaliation
$1.4 million
Schaar v. State of
Missouri
Sexual Harassment/
Retaliation
$1.275 million
Bates v. Kansas City, MO
Sexual Harassment
$595,000
$95 Million Verdict in Sex
Harassment Lawsuit in Illinois
Largest ever
 Female plaintiff alleged her manager made
suggestive comments, touched her
inappropriately and sexually assaulted her
 She reported conduct to her supervisor and
called the company’s Human Resources hotline
to complain, but the company took no action
 Key: employer’s failure to respond
appropriately

Compensatory Jury-Award Medians by
Type of Discrimination Case*
$300,000
$253,524
$262,684
$250,000
$200,000
Dollars
$200,000
$175,000
$150,000
$100,000
$50,000
$0
Race
Sex
Disability
Age
*Source: Jury Verdict Research® Horsham, Pa. (2009)
Recent Cases

Crawford v. Metropolitan Gov’t of Nashville
◦ Answering questions during an employer’s
internal investigation of alleged discrimination is
protected against retaliation
◦ “To oppose“ means to resist or contend against
◦ A person can "oppose" by responding to
someone else's questions just as surely as by
provoking the discussion
Recent Cases

Thompson v. North American Stainless
◦ Male employee who claimed he was fired
because his fiancé filed a discrimination charge
against their mutual employer may pursue a
claim for retaliation under the Civil Rights Act
◦ U.S. Supreme Court held purpose of antiretaliation provision is to prohibit any
employer action the might dissuade a
reasonable worker from engaging in protected
activity
Recent Cases

Kasten v. Saint-Gobain Performance Plastics
◦ U.S. Supreme Court holds Fair Labor
Standards Act’s prohibition on retaliation
against employees who file claims under the
FLSA also applies to oral complaints
◦ Complaint must be sufficiently clear and
detailed for a reasonable employer to
understand its substance
Recent Cases

Staub v. Proctor Hospital
◦ U.S. Supreme Court ruled a supervisor’s act
motivated by bias and intended to cause an
adverse employment action can make an
employer liable under USERRA where the act
is the proximate cause of the termination or
other ultimate employment action.
◦ The ultimate decision maker was not biased,
but was influenced by previous company
action that was discriminatory.
Federal Agency Activism

Equal Employment Opportunity
Commission (“EEOC”)
◦ Continued increase in Charge filings
28
,
28 37 2
,0
28
33
,9
33 3 7
,5
79
24
,8
26
30
,5
10
Age
Disability
FY 2006
FY 2007
Race
National
Origin
FY 2008
12
,0
25
8,
32
7 9,
39
6
12
,5
10
10
,6
110 1
,1
3
4
13
,8
67
12
,6
96
23
,2
47
27
,2
38
15
,5
75
17
,7
34
19
,4
5 321
,4
51
22
,7
78
24
,5
82
19
,1
03
35,000
32,500
30,000
27,500
25,000
22,500
20,000
17,500
15,000
12,500
10,000
7,500
5,000
2,500
0
16
,5
48
Number of Charges Filed
Charges Filed with the EEOC FY 2006-2009*
Sex
Sexual
Harassment
FY 2009
*U.S. Equal Employment Opportunity Commission
EEOC Increases Litigation Against
Employers
◦
The number of lawsuits filed by the EEOC
in federal court against employers has
increased dramatically
◦ All across the U.S.: Maryland, Virginia, Georgia,
Kentucky, Michigan, Wisconsin, Texas, Hawaii,
just to name a few
◦ All types of discrimination: pregnancy, national
origin, color, religious, disability, age, harassment,
retaliation, failure to accommodate.
EEOC Settlements On The Rise
◦
At the same time, EEOC settlements of
discrimination charges is increasing
◦ $1million in North Dakota for alleged sex
harassment
◦ $600,000 in Illinois for failure to accommodate
disability
◦ $3million in Minnesota for alleged age
discrimination
◦ $6million in California for alleged disability
discrimination
◦ $2million in Alabama for alleged sex harassment
◦ $210,000 in New York for alleged national origin
harassment and retaliation
EEOC’s Final Regulations on the
amendments to the Americans
with Disabilities Act (“ADAAA”)
The three-part definition of disability remains
unchanged.
 To be “disabled” under the ADA, a person must
meet at least one of the following criteria:

◦ a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
◦ a record of such an impairment; or
◦ being regarded as having such an impairment.\
EEOC’s ADAA Regulations

The EEOC’s new regulations broaden the
definition of disability:
◦ Disability” “shall be construed in favor of
broad coverage . . . to the maximum extent
permitted…”
◦ As a result, practically all individuals claiming
to be disabled will be deemed disabled under
the ADA
EEOC’s ADAA Regulations

Shifts the burden from the individual to
the employer
◦ No longer is the focus on whether an
individual is disabled
◦ Rather, the analysis focuses on whether the
employer has satisfied its obligations by
providing a reasonable accommodation to an
individual with a disability
EEOC’s ADAA Regulations

Expands list of major life activities
through two (2) non-exhaustive lists
◦ 1st class: functioning of body systems, i.e.
sitting, reaching, interacting with others…
◦ 2nd class: operation of major bodily functions,
i.e. operation of pancreas, kidney, liver...

EEOC states that in determining other
examples of major life activities, the term
“major” shall not be interpreted strictly
EEOC’s ADAA Regulations
“Substantially limits” – EEOC states that
this is not a demanding standard and
should be broadly construed
 Determination is to be made without
considering any ameliorative effects of
mitigating measures

◦ Exception: ordinary eyeglasses or contacts
EEOC’s ADAA Regulations
Conditions that are episodic (epilepsy) or
in remission (cancer) are considered a
disability if they would substantially limit a
major life activity when active
 EEOC states that conditions lasting less
than six (6) months can be substantially
limiting

EEOC’s ADAA Regulations
◦
The key – reasonable accommodation and
the interactive process:
 Interactive process between the employer
and the employee to determine what, if any,
reasonable accommodation is available to
enable the individual to enjoy equal
employment opportunities
EEOC’s ADAA Regulations
◦
Examples of reasonable accommodations:
 Making existing facilities used by employees
readily accessible to and usable by persons
with disabilities
 Job restructuring, modifying work schedules,
reassignment to a vacant position
 Acquiring or modifying equipment or devices,
adjusting or modifying examinations, training
materials, or policies, and providing qualified
readers or interpreters
EEOC Rules Addressing Genetic
Information Nondiscrimination Act
(“GINA”)
“Genetic information” includes Information
about an individual’s or a family member’s
genetic tests or family medical history
EEOC Rules Addressing GINA

Key prohibitions
◦ An employer never may use genetic
information in making employment decisions,
including benefits
◦ No harassment or retaliation
◦ Neither employer nor employer’s physician
may collect family medical history as part of a
medical examination
EEOC Rules Addressing GINA


When requesting health information, warn the individual
or health care provider not to provide genetic
information
Use specific language suggested by EEOC
 The Genetic Information Nondiscrimination Act of 2008 (GINA)
prohibits employers and other entities covered by GINA Title II
from requesting or requiring genetic information of an individual
or family member of the individual, except as specifically allowed
by this law. To comply with this law, we are asking that you not
provide any genetic information when responding to this request
for medical information. “Genetic information,” as defined by
GINA, includes an individual’s family medical history, the results of
an individual’s or family member’s genetic tests, the fact that an
individual or an individual’s family member sought or received
genetic services, and genetic information of a fetus carried by an
individual or an individual’s family member or an embryo lawfully
held by an individual or family member receiving assistive
reproductive services.
EEOC Issues Warning to Employers Who
Respond to Medical Record Subpoenas
In January 2011, the EEOC ruled that an
employer providing medical records pursuant
to a valid subpoena, but without the employee’s
written consent, violates the privacy provisions
of the Americans with Disabilities Act.
 The EEOC’s ruling was not a court decision,
nor was it a ruling in a federal discrimination
claim.
 Use caution when responding to such
subpoenas.

Department of Labor (“DOL”)

Significant awards against employers for
wage and hour violations
◦ $934,425 in Florida on behalf of 30 employees in
back wages and liquidated damages
◦ $830,000 in Texas for overtime violations
◦ $1.5million in California for overtime and
recordkeeping violations
◦ $1.76million in Iowa on behalf of 31 workers for
minimum wage and overtime violations
DOL Introduces Smartphone App
For Employees To Track Hours
◦ Can track straight time and overtime hours as
well as break times
◦ In English and Spanish
◦ Can be used during investigations to
contradict employer’s records
◦ Makes it easier for employees to pursue
claims against their employer
Deducting Wages Due To Losses
Caused By The Employee



In most states, employers may not deduct wages
from an employee’s paycheck due to losses
caused by the employee (e.g., damage to
equipment, cash register shortages, etc.) absent a
written authorization signed by the employee
prior to the deduction
In many states, for example California, an
employee’s pay cannot fall below minimum wage
Best practice – written authorization obtained in
a timely manner
Avoiding Payment of Overtime on
Employee Bonuses

Section 7(e) of the FLSA requires inclusion in an
employee’s regular rate all remuneration for
employment except certain specified types of
payments. Among these excludable payments are:
◦ Discretionary bonuses
◦ Payments in the nature of gifts on special occasions
◦ Contributions to certain welfare plans
◦ Payments made by the employer pursuant to certain
profit-sharing, thrift and savings plans
Avoiding Payment of Overtime on
Employee Bonuses
Bonuses which do not qualify for one of the
exclusions from the regular rate must be
totaled in with other earnings to determine
the regular rate on which overtime pay is
based
Avoiding Payment of Overtime on
Employee Bonuses
Where a bonus payment is considered a
part of an employee’s regular rate, it must
be included in computing his/her regular
hourly rate of pay and overtime
compensation
 If the employer promises in advance to
pay a bonus, he has abandoned his
discretion to issue it

DOL Focuses on Misclassification Issue

Independent Contractor
◦ Generally, the payer has the right to control or
direct only the result of the work done by an
independent contractor, and not the means and
methods of accomplishing the result

Employee
◦ An individual who performs services for the
company who is subject to the company’s control
regarding what will be done and how it will be
done
DOL Focuses on Misclassification Issue
◦
Primary issues to determine status
 Does the business have the right to control
the manner in which work is performed?
 Has the contractor a special or unique skill?
 Is the service an integral part of the business?
DOL Focuses on Misclassification Issue
◦
Primary issues to determine status
 Is there a degree of permanence in the
working relationship between the individual
and the business?
 Does the individual have a loss or profit
opportunity, depending upon results?
 Does the individual have an investment in
equipment or materials necessary for the
work?
Occupational Safety and Health
Administration (“OSHA”)

Significant fines against employers for
safety violations
◦ $1.9million in Alabama for egregious safety
violations
◦ $243,000 in Maine for fall hazards and other
egregious violations
◦ $487,000 in Mississippi for safety and health
violations
FY 2006 – FY 2010
Average Penalty Per Serious Violation
(Private Sector)
$1,500
$1,250
$1,000
$890
$928
$1,012
$1,098
$983
$750
$500
$250
$0
FY06
FY07
FY08
FY09
FY10
Top 10 Most Cited Standards
St. Louis Area Office-FY10
(General Industry)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
1910.147(c)(6)(i)
1910.212(a)(1)
1910.1200(e)(1)
1910.022(d)(1)
1910.147(c)(4)(i)
1910.303(g)(2)(i)
1910.305(b)(1)
1910.215(a)(4)
1910.132(d)(2)
1910.134(e)(1)
Energy Control Periodic Inspection
Machine Guarding
Hazard Communication Program
Floor Loading Protection
Energy Control Procedures
Guarding of Live Parts
Cabinets, Boxes, and Fittings
Abrasive Wheel Machinery
Workplace Hazard Assessment
Medical Evaluation-Respirators
OSHA Implements New
Smartphone App For Heat Index
Allows workers and supervisors to
calculate the heat index for their
worksite, and, based on the heat index,
displays a risk level to outdoor workers
 Provides reminders about “proactive
measures” individuals can take to protect
themselves from heat-related illnesses
 Provides OSHA contact information

OSHA Announces Changes to
Whistleblower Protection Program

In effort to strengthen program, OSHA
◦ Restructured internal operations for better
accountability, investigation and enforcement
◦ Implemented training programs for all
investigators
◦ Revised its whistleblower policy manual
◦ Modified internal processes to increase speed
of complaint investigations
OSHA’s New Penalty Structure

OSHA decided its penalty structure, in
place since early 1970’s, was inadequate
to deter employers as the fine amounts
were too low in today’s dollars
Gravity-Based Penalty
Previous
New
High/Greater
$5,000 or $7,000
$7,000
Medium/Greater
$3,500
$6,000
Low/Greater
$2,500
$5,000
High/Lesser
$2,500
$5,000
Medium/Lesser
$2,000
$4,000
Low/Lesser
$1,500
$3,000
Employer Size Reductions
Number of
Employees
Previous
Reduction
New
Reduction
1 – 25
60%
40%
26 – 100
40%
30%
101 – 250
20%
10%
251 or more
None
None
History Reductions/Increases
Previous
Consider last
3 year-history
of violations
Citations
within the
previous 3 yrs
10%
reduction
New
If inspected within last
5 years and no SWRF
citations issued (OTS
or IC only)
If inspected and cited
for HG Serious, WRF
No reduction
within the past
5 yrs
If never inspected or
no HG serious, WRF
citations in the past 5
yrs
10%
reduction
10%
increase
No
reduction
or
increase
Repeat Violations
Previous
New
Criteria: a final
order citation in
the previous 3 yrs
Criteria: a final
order citation in
the previous 5 yrs
Application of
Penalty Adjustment Factors

Previous: All penalty reduction factors
summed and multiplied by the GravityBased Penalty (GBP)

New: Penalty adjustment factors will be
applied serially to the GBP (e.g., 10%,
then 40%, etc. instead of 50%)
◦ Example follows
Sample Moderate Gravity Comparison:
Summed vs. Serial
Sample Data
High/Lesser
Summed
Serially
$5,000
$5,000
History (10%)
$4,500 -10%
Good Faith (15%)
$3,825 – 15%
Quick Fix (15%)
$3,251 – 15%
Size (30%)
Result
10% + 15% + 15% +
30% = 70%
$2,275 - 30%
$1,500
$2,275
Office of Federal Contract
Compliance (“OFCCP”)

Proposes strengthening current rules
pertaining to veterans
◦ Increase data collection obligations
◦ Establish hiring benchmarks to measure the
effectiveness of affirmative action efforts
◦ Engage in at least 3 specified types of outreach and
recruitment efforts each year
◦ Require that all job applicants be invited to selfidentify as "protected veterans" before they are
offered a job
National Labor Relations Board
(“NLRB”)
• Founded in 1935 to Enforce the National Labor Relations Act
• Members Appointed by President, Confirmed by Senate
• 5 Year Terms
• Currently only 3 members (2 Democrats; 1 Republican)
• U.S. Supreme Court Ruled NLRB Must have 3 Members to
act
• Obama Recess Appointments (Becker, expires Dec 31, 2011)
• Jurisdiction over all private sector workers and Postal Service
Craig Becker’s Views

While acknowledging that “at first blush it might seem
fair to give workers the choice to remain unrepresented.
Just as U.S. citizens cannot opt against having a
congressman, workers should not be able to choose
against having a union as their monopoly-bargaining
agent”

“Employers should be stripped of any legally cognizable
interest in their employee’s election of representatives”

“Employers should have no right to raise questions
concerning voter eligibility or campaign conduct.”
NLRB Charges On The Rise
NLRB Complaint Against Boeing

Challenges Boeing’s decision to place a
second production line for the 787
Dreamliner airplane in a non-union plant in
South Carolina as opposed to Washington
◦ Based on statements made by Boeing
representatives that decision was made, in part,
on past strike history in Washington and
resulting disruptions on production
◦ Republican lawmakers are outraged and have
called hearings on the NLRB’s conduct
The Poster
NLRB Finalizes New Posting Obligations
NLRB issued final rule on August 30, 2011
 Effective January 31, 2012, all employers
(both union and non-union) covered by
the National Labor Relations Act must
post a notice to their employees
informing them of their rights to organize
and collectively bargain

The Poster

Requirements of notice
◦ 11-by-17 inches
◦ Where other workplaces notices are posted
◦ Must be electronically posted/distributed if
employer typically communicates in such a
manner with its employees
◦ Must be posted in foreign language if 20% of
employees speak foreign language
The Poster
Failure to post may result in an unfair
labor practice, tolling of six months
statute of limitations, and a finding of
unlawful motive in other matters pending
before the NLRB
 Notice can be obtained from NLRB,
www.nlrb.gov, or commercial providers

The Poster

Notice describes employees’ rights under
the NLRA, including the right to
◦
◦
◦
◦
Organize, form, join or assist a union
Bargain collectively
Discuss wages and benefits with coworkers
Raise work-related complaints with the
employer
◦ Strike and picket
◦ Choose not to do any of these activities
The Poster

Notice also lists employer unfair labor
practices
◦
◦
◦
◦
◦
◦
◦
Unlawful solicitation and distribution rules
Interrogation
Adverse job action for engaging in protected activity
Threats, such as to close facility if employees go union
Making promises to discourage union support
Prohibiting wearing of union insignia (hats, buttons, etc.)
Surveillance of union activities
Ambush Elections
On June 22, 2011, the NLRB proposed new rules
regarding NLRB Elections
 Voter Eligibility Lists (Excelsior Lists)
◦ Employers would be required to produce a
voter eligibility list within 2 days after the
direction of the election (currently 7 days)
◦ The list also would include substantially more
information, including employees’ telephone
numbers, position and email addresses

Ambush Elections

Pre-Election Hearings
◦ Employers could obtain a pre-election hearing only
upon a showing of substantial evidence (by submitting
a statement of position)
◦ Even upon a showing of substantial evidence, a hearing
would only be granted at the discretion of the
Regional Director

Post-Election Objections
◦ The time period to file post-election objections would
decrease from 14 days to 7 days
Ambush Elections

Timing of Elections
◦ Based on the NLRB timetable, an election could be
held less than 20 days after a representation petition
is filed (pre-election hearing 7 days after petition is
filed, 2 days to provide voter eligibility list and
election held within 10 days)
◦ This substantially limits an employer’s ability to
prepare an informational campaign for its employees
about the pros and cons of unionization
Micro Unions

Specialty Healthcare and Rehabilitation
Center of Mobile, (NLRB 2011)
◦ NLRB permits unions to organize a minority
share of an employer’s workforce
◦ Departure from traditional “wall to wall” unit
of employees who shared a community of
interest
◦ Potential for different unions to represent
different groups of employees – department or
job classification union organizing
NLRB and Social Media

Acting General Counsel Issues Report on
Recent Social Media Cases
◦ Each case involved an employee’s use of social
media (e.g., Facebook, Twitter)
 In 4 cases, the NLRB found the employees were
engaged in “protected concerted activity” because
they were discussing terms and conditions of
employment with fellow employees
NLRB and Social Media

Example: an employee posted negative remarks about
her supervisor on Facebook while on her home
computer. The NLRB found the employee’s discharge
for such comments violated the NLRA. The NLRB also
found the employer maintained an unlawful internet and
blogging policy because:
1. The policy unlawfully prohibited employees from
posting pictures of themselves that depicted the
company in any way.; and
2. The policy also unlawfully prohibited making
disparaging comments about the company or its
supervisors or managers.
NLRB and Social Media

Further examples of overly broad policies:
◦ Prohibiting any communication or post that
constitutes embarrassment, harassment or
defamation of the employer or of any
employee, officer, board member,
representative or staff member.
◦ Prohibiting any statement that lacks
truthfulness or that might damage the
reputation or goodwill of the company, its staff
or employees.
NLRB and Social Media

Further examples of unlawful policies:
◦ Prohibiting employees from revealing personal
information regarding coworkers or
customers without specific examples or
limitations
◦ Prohibiting the use of the employer’s logos
and photographs of the employer’s facility,
brand or product without written
authorization.
Persuader Activity - The Gag Rule
The
LMRDA requires employers and
outside labor relations consultants to file
financial disclosure reports as to any
arrangement where the consultant was
retained to:
◦ Persuade employees regarding union organizing
or collective bargaining; and/or
◦ Obtain information about employee or union
activities related to a “labor dispute.”
Persuader Activity - The Gag Rule
LMRDA Section 203(c) provides an advice
exemption which permits employers to consult
with labor counsel about what is lawful for the
employer to do during a union campaign.
Persuader Activity - The Gag Rule
Currently, speech and materials delivered
directly to employees by an outside
consultant or attorney is reportable
persuader activity.
 Advice exemption

◦ No employee contact by third party
◦ Draft communication for employer to consider
Persuader Activity - The Gag Rule
 New
standards issued in June 2011, would narrow
significantly the scope of the “advice exemption.”
 Reportable
persuader activities would include those in
which a consultant engages in any actions, conduct or
communications on behalf of an employer that would
directly or indirectly persuade workers concerning their
rights to organize and bargain collectively, regardless of
whether or not the consultant has direct contact with
workers.
Persuader Activity - The Gag Rule
 American
Bar Association Position
◦ Rule undermines
 confidential attorney-client relationship
 employer’s fundamental right to counsel
NLRB Permits Employee to Secretly
Record Conversation

In Hawaii Tribune-Herald, the NLRB held an
employee could not be discharged for
secretly tape-recording a meeting with a
supervisor
◦ Employee invoked Weingarten rights, which NLRB
found the employer violated
◦ No work rule in place barring such recordings
◦ It was not otherwise unlawful to make such a
recording in the state where the incident took place
NLRB Permits Employee to Secretly
Record Conversation


As a general rule, in all jurisdictions, at least
one party to a private conversation must
consent to the recording of the
conversation
12 jurisdictions require all parties to
consent
Handling Government Investigations
OSHA
OSHA - Be Prepared

Conduct periodic audits of OSHA safety
records
◦ Injury logs maintained as required
◦ All necessary safety precautions implemented and
working properly

Have an action response plan in place
◦ Train managers/employees on how to respond
◦ Delegate responsibilities to certain
managers/employees
◦ Advise employees of their rights/responsibilities
OSHA - The Inspection Process

No advance notice

OSHA must be notified by call to local
area office or 800 number if:
◦ Employee fatality on the job
◦ 3 or more employees hospitalized as a result
of workplace injuries/illness within 8 hours of
occurrence
OSHA - The Inspection Process

Refusal to allow inspection rarely
advisable

Delay of more than 1 hour likely to be
treated as refusal

OSHA can obtain inspection warrant
from a federal judge without notice to
employer

Resulting inspection more stringent
OSHA - Opening Conference with
Compliance Officer

Establish basis and intended scope of
inspection
◦ Complaint inspection
 Copy to be provided
 Generally limited to complaint items
◦ General schedule inspection
◦ Fatality/catastrophe inspection
◦ Warrant inspection
 Warrant should specify scope
OSHA - Opening Conference with
Compliance Officer

Apprise top management and Company
attorney, depending on circumstances

Determine persons to accompany
compliance officer, including union
representative
OSHA - Opening Conference with
Compliance Officer

Plan the route through the plant for
inspection
◦ What can be seen can be cited
◦ Take notes of everything observed by
investigator
◦ If pictures taken, take pictures of everything
being photographed
◦ Make copy of everything being taken
OSHA - Inspection Procedures

Use of cameras and testing equipment
◦ Industrial hygiene inspections

Employee interviews
◦ Opportunity to select
◦ Private

Limit disruption of work operations
◦ Reasonable time
◦ Reasonable limits
◦ Reasonable manner
OSHA - Inspection Procedures

Answering the compliance officer’s
questions

When should you volunteer information

Making immediate repairs
OSHA - Closing Conference with
Compliance Officer

Employee representative not entitled to
be present
◦ Compliance officer meets separately
Preliminary findings only
 Avoiding admissions of violations and
providing exculpatory information
 Convey good faith concern for
compliance
 Correcting potential violations

OSHA - Responding to a Citation

Decision to contest must be made within
fifteen (15) working days of receipt

Take advantage of informal conference
with OSHA supervisor prior to
contesting

Maximum penalties
OSHA - Have a Settlement Proposal
to Make

Be realistic
◦ OSHA generally will offer some penalty
reduction
◦ Consider partial settlement
Get abatement dates extended where
necessary
 Non-admissions clause for any purpose
other than subsequent OSHA
proceedings

Handling Government Investigations
DOL
DOL – Reasons for Investigation
Minimum wage compliance
 Overtime
 Proper employee classification
 Recordkeeping obligations
 Retaliation claims

DOL – Be Prepared

Conduct periodic audits of payroll
records
◦ Employees being paid minimum wage for each
pay period
◦ Employees receiving overtime when required
◦ Job descriptions accurately reflect duties
resulting in proper exempt/non-exempt status
◦ Employees properly classified
DOL – The Inspection Process

Notice
◦ Typically given in advance via letter
◦ If no notice, then simply advise this is not a good time
due to the demands of the business and reschedule at
a mutually convenient time
 Call your attorney if the investigator insists on
entering at that time.
DOL – The Inspection Process

Onsite visit
◦ Opening meeting
◦ Place the investigator in a room separate
from employees near the front of the facility
◦ Have records responsive to the request ready
for review if possible
DOL – The Inspection Process

Responding to requests for interviews
◦ Comply to the extent operations are not
disrupted
◦ Company should select the interviewee
◦ Employees also have the right to decide
whether or not to provide a statement
◦ Neither managers nor supervisors should
provide written statements.
DOL – The Inspection Process

Closing meeting
◦ Make no admissions
◦ Simply listen to what they have to say
Immigration and Customs
Enforcement (“ICE”)
Purpose – investigate the employment of
unauthorized workers
 Be prepared – conduct periodic audits of
Form I-9 documentation

◦
◦
◦
◦
Fully completed
Timely completed
Re-verification completed as necessary
Maintained in separate files
ICE – The Inspection Process

Notice
◦ If ICE agent has been in communication with
the Company, then notice may be provided. I9 Forms may already have been provided and
issues identified.
◦ Typically, however, no notice is provided, even
if communications have been made between
the parties
ICE – The Inspection Process

Dealing with ICE arriving at your door
◦ Authorities arrive with a search warrant
 Ask to see identification
 Obtain a business card or write down information
 Ask to see warrant and accompanying documents
and make a copy
 Contact your attorney
Avoiding Litigation By Disgruntled
Employees
The 90/10 Rule

90% of an organization’s human resource
problems are caused by 10% of the
organization’s employees
Essential Handbook Policies
◦ Equal Employment Opportunity
◦ Harassment
 General policy statement that covers all forms of
harassment, not just sex
 Description/examples of prohibited conduct
 Reporting procedure
 Confidential investigation
 Appropriate remedial action
 No retaliation
◦ At-will nature of employment
Essential Handbook Policies (cont.)
◦ Employee Classification – avoid “permanent”
◦ Benefits – reference to summary plan
description
◦ Leaves of Absence
◦ Workplace Violence
◦ Code of Conduct
◦ Substance Abuse Testing
◦ Open Door
◦ Employee Acknowledgement
Supervisor/Manager Training
◦ At hire and periodically thereafter (annually in
some states, like California)
◦ Communicate and reinforce Company’s
policies against discrimination and harassment
◦ Supervisors/managers must be role models
and refrain from inappropriate behavior at all
times
◦ Open door policy to receive complaints
◦ No retaliation
Employee Training
◦ At hire and periodically thereafter (annually in
some states, like California)
◦ Communicate and reinforce Company’s
policies against discrimination and harassment
◦ Explain complaint procedure so that
employees know who to go to if they have an
issue
Upper Management Responsibilities
Monitor the work environment and require
high standards of professionalism and courtesy
 Respond quickly and appropriately to all
discrimination/harassment complaints
 Take every complaint seriously and act quickly
to stop inappropriate or offensive conduct
 Ensure retaliation does not occur and do not
let the complainant walk away frustrated

Effective Complaint Investigations

Interview the complainant, alleged bad actor,
and any witnesses
◦ Obtain specifics – time, date, location, context, others
present, statements, etc.

Resolution of complaint
◦ If allegations not established, no action taken except
redissemination of policy and/or training
◦ If policy violation occurred, then take appropriate,
remedial corrective action
◦ Follow up with complainant
Making the Decision to Terminate
7 Questions
1.
Did the employer give the employee
forewarning of the possible or
probable disciplinary consequences of
the employee’s conduct?
a.
b.
Employee handbooks
Plant rules
2. Was the employer’s rule or policy
reasonably related to the orderly,
efficient, and safe operation of the
company’s business?
a.
b.
Performance and productivity
Safety
3.
Did the employer, before administering
discipline, make an effort to discover
whether the employee violated or
disobeyed a rule or policy?
a.
Employee has a right to know the offense he or she
is being charged with and must be given an
opportunity to defend his or her behavior
b.
Investigation should be made prior to a disciplinary
decision
c.
Where management must react immediately to
employee’s behavior, suspension pending
investigation is generally recognized as acceptable
4.
Was the employer’s investigation
conducted fairly and objectively?
a.
b.
c.
Who, what, where, when and how?
Interview relevant witnesses
Do not pre-judge employee
5. At the investigation did the
employer obtain substantial evidence
or proof that the employee was
guilty as charged?
a.
Evidence must be truly substantial and not
flimsy
b.
Evidence must be documented
6.
Has the employer applied its rules,
policies and penalties evenhandedly and
without discrimination to all employees?
a.
b.
Discrimination is the antithesis of just
cause
Employee cannot be singled out for
discipline based on a rule that is not
enforced against any other employees
7.
Was the degree of discipline administered
by the employer reasonably related to the
seriousness of the employer’s proven
offense and the record of the employee’s
service?
a.
A trivial proven offense does not warrant harsh
discipline unless the employee has properly been
found guilty of the same or other offenses a
number of times in the past
b.
Employee’s record of previous offenses may never
be used to determine guilt or innocence of the
current charge, but may be used in evaluating the
severity of discipline for a proven offense
c.
Bottom line: Is it fair?
Termination Guidelines

How an employee is treated at the time of
termination, and not the termination itself, often
gives rise to legal action
◦
◦
◦
◦
Protect the employee’s privacy and dignity
Notify the employee in person in private
Have 2 managers present so that one can act as witness
Provide the reason for termination and give him/her
the opportunity to respond or ask questions
◦ Limit communications regarding termination decision
on a “need to know” basis
QUESTIONS???