Ohio Employer's Law Blog | Daily Updates | 01CDo you know what to do when OSHA comes knocking?>01D plus more



Do you know what to do when OSHA comes knocking?

News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, OSHA was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

  1. Fall Protection
  2. Hazard Communication
  3. Scaffolding
  4. Respiratory Protection
  5. Lockout/Tagout
  6. Powered Industrial Trucks
  7. Electrical – Wiring Methods
  8. Ladders in Construction
  9. Machine Guarding
  10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.

       

WIRTW #357 (the “proud papa” edition)

My kids go to an amazing school. Part of what makes it amazing is that beginning in third grade the second parent-teacher conference is student led. Last night, my wife and I experienced our first Norah-led conference.

The conference blew me away. I knew that Norah would be presenting her PowerPoint on Neptune, the culmination of weeks of research and hard work. I was not prepared, however, for the conference to be 100% student led. My wife and I watched and listened for nearly 45 minutes as, working off a prepared agenda, Norah ran the meeting and walked us through all she’s done for the past four months. She presented a dramatic monologue. She shared a story she had written in her creative writing journal. She demonstrated how she’s learned 3x2 multiplication. She displayed her self-assessed progress report (she’s much tougher on herself than her teacher would have been). The conference capped with Norah’s Neptune PowerPoint, which, with her permission, I’m sharing with you.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

 


Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.


DOL proposes expanded FMLA coverage for same-sex couples

Same-sex spousal rights in this country are a mess. There is hope that the Supreme Court will clear it all up later this year when it hears the issue. In the meantime, the Department of Labor has proposed a change to the FMLA’s definition of “spouse.” From the DOL:

We announced a rule change under the FMLA to make sure that eligible workers in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to care for a spouse. We’ve extended that promise so that no matter who you love, you will receive the same rights and protections as everyone else.

For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This is called a “place of celebration” rule.  That means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.

Thus, as proposed, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. So, if your business is in Ohio and your employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, you would have to grant that employee the same FMLA benefits as you would to any other “spouse.”

This rule takes effect March 27, which means you have only 30 days to prepare your FMLA policies and practices for this important change. What should you be doing to prepare? Jeff Nowak offers three really good ideas:

  1. Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.

  2. Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.

  3. Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

Of course, as Robin Shea correctly points out, if the Supreme Court rules later this year that states must recognize valid same-sex marriages entered in other states (as it should), then the necessity of this DOL regulatory change is short lived.

Courtesy of the DOL, here are all of the resources you need on this important issue:


Turning a mistake into an educational opportunity

Yesterday, local morning news anchor Kristi Capel got herself into a bit of a mess when, during her newscast and while speaking to her African-American co-anchor, used “jigaboo” to refer to Lady Gaga’s music.

We can debate the sincerity of her explanation (“I deeply regret my insensitive comment. I didn’t know the meaning and would never intentionally use hurtful language. I sincerely apologize”), or the intent of her words. To me, she did not appear to intend hatred or bigotry, even if I don’t necessarily believe that she didn’t know the meaning of jigaboo. We can also debate whether she deserves to lose her job because of this incident. To me, if this is her first instance of racial insensitivity in the workplace, then there is no reason she must be fired (although Fox 8 certainly would be within its rights if it did so).

Instead, I want to use this story to illustrate a broader and much more useful point. In responding to workplace harassment, Title VII does not require that an employer deploy the most severe punishment. Instead, Title VII merely requires that an employer institute corrective action that is reasonably likely to prevent the harassment from re-occurring. Every workplace faux pas is not an excuse to punish. Yet, each presents an opportunity for an employer to teach, and for employees to learn.

In commenting on the incident, Fox 8’s news director said, “Kristi apologized on the air shortly after making the remark. She did not know what the word meant but that is no excuse for using it. We have spoken with her and are confident nothing like this will happen again.” Good response.


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