Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This post was contributed by Eric N. Athey, Esq., Co-Chair of the McNees Wallace & Nurick LLC Labor and Employment Group. 

Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services. However, to date, there is no OSHA general industry standard addressing this serious hazard.

Although there is presently no OSHA general industry standard for preventing workplace violence, OSHA has cited some employers for failing to address serious known risks under Section 5(a)(1) of the Occupational Safety and Health Act - also known as the "general duty clause." Basically, the general duty clause requires employers to provide a workplace free from recognized hazards. Citations under the general duty clause may arise where an OSHA inspector discovers evidence that an employer knew (or should have known) of individual or industry-specific risks of violence and failed to take feasible steps to prevent or minimize them. Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.

On September 8, 2011, OSHA issued an "Instruction" to its Regional Offices titled "Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents." The Instruction is intended to facilitate a uniform approach to workplace violence inspections that are triggered due to: (1) a complaint, referral, or a fatality or catastrophic event in the workplace; or (2) as part of a programmed inspection where there is recognition of the potential for violence in the industry or where the hazard is identified and existing. The OSHA Instruction makes clear that inspections generally won't be considered in response to a single co-worker threat of violence and that such individualized issues should be referred to the appropriate government agency.

The OSHA Instruction lists three basic criteria that Regional Offices must consider when determining whether a workplace violence inspection is appropriate: (1) whether there are known risk factors in the particular workplace; (2) evidence of employer and/or industry recognition of the potential for workplace violence in OSHA-identified high risk industries, such as late night retail, healthcare and social services; and (3) whether there are feasible abatement methods available to address the risks.

The "known risk factors" listed in the OSHA instruction are:
 

• Email This
• Print
• Share Link

On September 28, 2011, a National Labor Relations Board (Board) Administrative Law Judge (ALJ) found that an employee who was discharged for posts he made on his Facebook page was not discharged in violation of the National Labor Relations Act (NLRA). In Knauz Motors, Inc., Case No. 13-CA-46452 (pdf), the ALJ found that the employee's Facebook posts contained both protected and non-protected activity, but that the employee was terminated for only the non-protected activity. As a result, the ALJ refused to find that the employee's discharge was unlawful.

The decision involved two different threads on the employee's Facebook page. The first included "mocking and sarcastic" pictures and comments about a sales event at the car dealership where the employee worked. The employee was dissatisfied with the food selection for the event, which included hotdogs among other things. The employee expressed his displeasure about the food selection at a meeting prior to the event, and another employee voiced a similar complaint. The ALJ found that since more than one employee complained about the food, the complaints constituted "concerted" activity.

The employee later testified that he believed that the food selection would impact his compensation, a term and condition of employment, because the dealership was a luxury car dealership and serving hotdogs might offend customers. However, the employee never mentioned any connection to compensation in his complaint during the meeting or on Facebook. Nonetheless, the ALJ found that the food selection at the event, even though "not likely," could have had an effect on compensation. As such, the ALJ concluded that the employee's complaints and the Facebook pictures and comments about the sales event constituted protected activity under the NLRA.

However, the second Facebook thread, which contained pictures and comments regarding an accident at a related dealership, was not protected activity.

• Email This
• Print
• Share Link

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

Many watched intently in early February as the political theater unfolded in Madison, Wisconsin when Republican Governor Scott Walker proposed legislation to limit the collective bargaining rights of most state government employees. In a matter of days, the Capitol would be swarming with protesters and demonstrators on both sides of the issue. What followed was weeks of sit-ins in the Capitol, a mass walkout by all 14 Democratic State Senators to block a vote on the proposed law, the unprecedented recall elections of 6 Republican and 3 Democratic state lawmakers and a bitterly fought campaign to unseat an incumbent State Supreme Court Justice widely viewed as a pro-Walker.

Those in favor of public sector reform argue that collective bargaining limits are necessary to deal with steep budget shortfalls. Projections from Governor Walker’s office estimate that the state will save approximately $30 million this year as a direct result of the new law. On the other side, pro-union allies contend that moves like the one in Wisconsin are nothing more than a political power grab designed to bust up unions and cripple their longstanding support of Democratic candidates. Observers on both sides generally agree though that the movement to reform public sector collective bargaining rights has invigorated the debate on the role of unions in today’s uncertain economic climate.
 

• Email This
• Print
• Share Link