A few weeks ago, a jury in New Jersey federal court found that Lockheed Martin discriminated against a former employee. The employee claimed that Lockheed violated federal and state laws by discriminating against him on the basis of age, including by paying him less than his younger co-workers. The jury’s award: $51.5 million ($1.5 million in compensatory damages and $50 million in punitive damages).  Although the claim was only partially based on unequal pay, and although the punitive damages award is constitutionally suspect (U.S. Supreme Court precedent holds that punitive damages should generally not be more than ten times the amount of compensatory damages), the award is indicative of an ever-emerging emphasis on pay equity.

Since January of 2016, several states have enacted equal pay statutes, and several others have pending legislation. California, New York, Maryland, and Massachusetts all have statues that prohibit pay discrimination on the basis of sex (Maryland’s also includes gender identity). Each of these statutes makes it easier for employees to establish pay discrimination claims, including requiring no proof of intent. One state, however, allows employers to establish an affirmative defense. Under Massachusetts’ statute, which is set to go into effect in July 2018, an employer has an affirmative defense if it completed a self-evaluation of its pay practices within three years of the claim, and it made reasonable progress toward eliminating pay differences revealed by the self-evaluation.

It is not just states that have turned their focus toward compensation. Our federal contractor subscribers – recognizing that Lockheed Martin is a federal contractor (the biggest, actually) – may find themselves wondering how aggressive the Office of Federal Contract Compliance Programs (OFCCP) has become with respect to compensation. If its lawsuit against Google is any indication, OFCCP has become quite aggressive. Typically, during a compliance audit OFCCP will require employers to provide compensation data for all current employees to ensure no disparity across races and genders. With Google, it went further. It demanded wage histories, changes in compensation, and employee contact information. When Google refused, OFCCP filed a lawsuit seeking an injunction and threatened to cancel all of Google’s federal contracts.

Finally, even if you are not in a state that has current or pending pay equity statutes, and even if you are not a federal contractor, employers may need to report compensation in the future. For employers with 100 employees or more, the Equal Employment Opportunity Commission has proposed to collect compensation data by sex, race, and ethnicity for each job category. Thus, starting in March 2018 – assuming no changes occur under the new Trump administration – those employers will be required to include compensation information in their EEO-1 report. According to the EEOC, this “will provide a much needed tool to identify discriminatory pay practices where they exist in order to ensure that fair pay practices are put in place.”

Considering all this momentum toward ensuring pay equity, compensation has possibly become one of employers’ greatest vulnerabilities.  Now may be the time to conduct an internal analysis – preferably one shielded by attorney-client privilege – to determine whether disparities exist within your compensation structure. Stay tuned for future podcasts, webinars, and seminars that will address this issue in part.

The Philadelphia City Council recently passed Bill No. 160840, a wage equity ordinance (the “Ordinance”), that will amend Philadelphia’s Fair Practices Ordinance to prohibit employers or employment agencies from inquiring about the wage history of potential employees.  Among other things, the Ordinance also includes an anti-retaliation provision, which prohibits any form of retaliation against a prospective employee for failing to comply with a wage history inquiry.

More specifically, the Ordinance provides that it is an unlawful employment practice for a covered employer to:

  1. inquire about a prospective employee’s wage history;
  2. require disclosure of wage history;
  3. condition employment or consideration for an interview on disclosure of wage history; or
  4. retaliate against a prospective employee for failing to comply with any wage history inquiry.

Furthermore, the ordinance also makes it an unlawful employment practice for an employer to “rely on the wage history of a prospective employee from any current or former employer when determining the wages for such individual at any stage in the employment process,” which includes the negotiation or drafting of any employment agreement.  However, the Ordinance does provide an exception that permits an employer to rely on any wage information that is knowingly and willingly disclosed by an applicant.

It is important to note that this Philadelphia Ordinance will take effect 120 days after it is signed into law by Mayor Jim Kenney, who has expressed his support.  Accordingly, if the Ordinance is signed this month, employers in Philadelphia can expect to see the Ordinance take effect in May of this year.

In anticipation of the enactment of this Ordinance, Philadelphia employers can prepare by:

  1. removing any questions on employment applications that may in any way seek information about salary or wage history;
  2. train hiring managers and interviewers to avoid asking questions about an applicant’s wage history;
  3. refrain from relying on an individual’s wage history (if known) when deciding the appropriate wages/salary to pay a prospective employee; and
  4. review existing policies and practices to ensure compliance with the Ordinance.

This Philadelphia Ordinance is recent example of a growing trend to prohibit employers from requesting and relying on an applicant’s wage history.  This trend has emerged in an effort to address what many call the “gender pay gap.”  In light of these recent actions by state and local governments, employers across Pennsylvania and beyond should stay informed about further developments in this area, as similar laws may soon be proposed and enacted in other locations.

With the holiday season officially upon us, many employers are finalizing plans to host a party for their employees.  These festivities offer a time for colleagues to celebrate the year’s accomplishments, to extend season’s greetings, and to bond with one another in a less formal environment.  Sometimes, though, the holiday cheer can turn into a nightmare for employers.

By keeping an eye out for the many issues that may arise during an office holiday party, and by sticking to a few simple rules, you can ensure that your organization stays on the “nice” list this year.

Remember that Holidays Aren’t the Same for Everyone

Title VII of the Civil Rights Act of 1964 and many state laws, including the Pennsylvania Human Relations Act, protect employees from discrimination based on race, sex, national origin, and religion, among other things.  Unfortunately, holiday celebrations have landed some employers in legal hot water during the most wonderful time of the year, including: disciplining a Muslim employee for refusing to participate in Christmas activities (EEOC v. Norwegian Am. Hosp.) and forcing a Jehovah’s Witness employee to use vacation time to skip a holiday party (Westbrook v. NC A&T State Univ.).  You can avoid these potential problems by taking the following steps:

  • Hold holiday parties off-premises and during non-work hours if possible.
  • Make attendance optional. If the party is held outside of work hours and optional, then employees who may not celebrate holidays for religious or ethnic reasons can miss the party without forfeiting pay or suffering discipline.
  • Consider offering a “holiday party” or “end of year party” instead of a celebration linked to a particular religious observance. Although you may not get sued for simply having a “Christmas Party” or “Hanukkah Party,” adding religious overtones to your celebration may leave some workers feeling alienated or unwelcome.
  • If an employee has a religious or cultural objection to participating in your company’s holiday celebration, explore whether there’s a reasonable accommodation that will alleviate that employee’s concerns.

Keep an Eye Out for Bad Santas

Cultural and religious issues aren’t the only ones that can cause headaches for employers this time of year. In Brennan v. Townsend & O’Leary Enterprises, Inc., an employer held a holiday party for its employees.  A supervisor dressed as Santa Claus and asked his female subordinates to sit on his lap while he asked questions about their love lives.  One female employee sued on the basis of sexual harassment.  Ultimately, the case went to trial, where a jury awarded the employee $250,000.  The verdict was overturned on appeal, but the employer’s legal costs in defending the claim figure to be astronomical.

Work to prevent similar unfortunate scenarios by reminding employees that while holiday parties are meant to be fun and informal, they are still work-related functions and employment policies, including your anti-harassment policy, apply.  At your party, everyone should treat each other with same dignity and respect as they do during a normal workday.  Employees should be encouraged to report any questionable behavior so that it can be immediately corrected if necessary.  If you follow our blog, you already know that your workplace should be free from sexual harassment; your holiday party should be too!

If you’re Serving Egg Nog (or Other Alcoholic Beverages)…

Many employers choose to serve alcohol to add to the cheer and festive atmosphere at their holiday parties.  There’s usually nothing wrong with this from a legal perspective, and employees often appreciate the ability to enjoy an adult beverage while having a good time with work colleagues.  Serving alcohol at a work function does have its risks, though.  For instance, personal inhibitions often dissolve the more one drinks.  So what can you do to slow employees down while still keeping the party going?  Well…

  • Offer a certain number of drink tickets to each employee. By limiting the number of drinks available to your workers, you’re taking a big step toward keeping someone from drinking too much.
  • Fill your drink menu with beverages that contain relatively low amounts of alcohol. Stick to beer and wine, and leave the hard stuff at home.  Also offer plenty of non-alcoholic drink choices.
  • Make food available to help slow the absorption of alcohol.
  • Consider finding a few volunteers who will not drink (good luck!) and monitor the party. These folks can see whether someone has had too much to drink and help arrange for cabs and/or designated drivers.
  • Close the bar well before the event is over. Allow an hour or so for employees to continue mingling after last call.
  • Provide some form of transportation to and from the event.

Although there are ways for your festivities to turn into trouble, you certainly don’t need to be a Grinch to avoid the hassle.  Just remember that establishing and following a set of reasonable ground rules will foster a safe and happy holiday event for everyone.

On November 28, 2016, a federal district court issued an order that allowed OSHA to move forward with implementation of its controversial standards related to mandatory post-accident drug testing programs and incident-based employer safety incentive programs.  As McNees previously reported, OSHA delayed enforcement of these parts of its final rule, aimed to “Improve Tracking of Workplace Injuries and Illnesses” (the “Rule”), until December 1, 2016.  Absent any further developments, the Rule is set to become enforceable December 1, 2016.

However, while the Rule will become enforceable, its continued validity remains questionable.  The court’s order does not dispose of the underlying complaint that asked the court to vacate the relevant parts of the Rule, the order only denied the request for a preliminary injunction.  Another layer of uncertainty has been added since Donald Trump was elected president.  President-elect Trump’s administration may ultimately decide to undo the relevant provisions or retreat from the prior administration’s expansive interpretations after he takes office in January 2017.  This creates a situation where employers need to comply with the controversial standards for now, but OSHA or a court may indicate otherwise in the not-so-distant future.  Further background on these provisions, OSHA’s guidance, and the ongoing litigation is provided below, with a focus on post-accident drug and alcohol testing.

The Controversial Provisions of the Rule

When OSHA issued the Rule in May 2016, the agency created an enforcement tool allowing it, for the first time, to independently cite employers if their policies for post-accident drug or alcohol testing, employee discipline, or safety incentive programs are deemed retaliatory because they discourage or deter injury reporting.  The controversial portions of OSHA’s Rule are at 29 C.F.R. § 1904.35(b), which requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”  A procedure is “not reasonable,” according to the Rule, “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  In conjunction with this requirement, the Rule prohibits employers from discriminating or retaliating against employees for reporting work-related injuries or illnesses.

Essentially, the Rule provides that blanket post-accident drug and alcohol testing policies will discourage injury reporting and could be retaliatory..  Drug or alcohol testing are not specifically mentioned in the text of the Rule.  However, OSHA has provided interpretations in the Rule’s preamble and guidance that establish authority to cite employers for workplace policies that OSHA deems to have discouraged reporting or otherwise to be retaliatory.  For the first time, OSHA will be able to cite an employer for retaliation even if an employee does not file a complaint.  In October 2016, OSHA posted guidance on its Rule webpage related to an Employee’s Right to Report Injuries and Illnesses Free from Retaliation, including a Memorandum for OSHA’s Regional Administrators on implementation of the guidance (together, the “Guidance”).  The Guidance confirms that OSHA’s enforcement will apply to both drug and alcohol testing, and that workplace testing policies implemented pursuant to federal or state law should not be affected.  Yet, significant uncertainty remains for employers.

Lingering Uncertainty and Next Steps for Employers

The uncertainty surrounding the Rule is twofold.  First, from a substantive perspective, implementation is not entirely clear, despite the Guidance.  Employers will be forced to grapple with competing – and potentially conflicting – obligations under OSHA’s Rule and other federal and state laws as they relate to post-accident drug and alcohol testing.  On one hand, employers who require mandatory post-accident testing through sound workplace policies may be cited if OSHA determines that drug or alcohol use was not likely to have been a contributing factor to the reported injury.  On the other hand, if employers do not require mandatory testing across the board (e.g., for all lost-time injuries), workplace incidents related to drug or alcohol use arguably may increase, and selectively choosing individuals for testing may expose employers to claims that they profiled or targeted specific workers.

Second, such substantive issues now threaten the standards’ continued validity, through both litigation and executive action.  In July 2016, several trade associations, along with a workers’ compensation insurer and its insureds, initiated the litigation described above.  The action filed in the U.S. District Court for the Northern District of Texas seeks to vacate the relevant parts of the Rule to the extent they prohibit or limit routine mandatory post-accident drug and alcohol testing programs and incident-based safety incentive programs.  The plaintiffs alleged that OSHA did not have authority to create the new enforcement tool for retaliation, and that OSHA disregarded substantial evidence supporting that routine, mandatory drug and alcohol testing actually enhances workplace safety.  In the midst of the litigation, OSHA decided to postpone enforcement until November 1, 2016 to issue the Guidance.  OSHA later agreed to further delay enforcement of the Rule until December 1, 2016, but its Guidance also urged employers to review their programs and policies to determine whether they may be deemed retaliatory with respect to injury reporting.

Now that the court has denied the plaintiffs’ request for a preliminary injunction, employers who have not consulted the OSHA Guidance and prepared for timely compliance should do so by determining whether revisions to their workplace policies are necessary.  The fate of OSHA’s approach is still in the hands of the federal district court, and, even before the court decides the merits, the Trump administration may undo the OSHA standards or interpretations issued under the Obama administration or refuse to enforce them.  Nonetheless, in the interim, employers must understand how the OSHA standards and the Guidance affect their programs.  Risks of noncompliance include potential OSHA citations, including higher penalties in effect since August 2016.

Next Steps for Employers

As noted, the Rule is effective December 1, 2016, so employers need to take steps to ensure compliance.  Need assistance?  McNees contacts that can help include: Steve Matzura, Paul Clouser, Denise Elliott, Joe Sileo and Andrew Levy.

The Equal Employment Opportunity Commission (‘EEOC”) has been aggressively advancing its position that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation even though sexual orientation is not expressly identified as a protected class. More information on the EEOC’s position is available here. Recently, the United States District Court for the Western District of Pennsylvania agreed with the EEOC’s position. In, U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., U.S. District Judge Cathy Bissoon concluded that discrimination based on sexual orientation is prohibited by Title VII.

In its complaint, the EEOC alleged that a former gay male employee who worked for Scott Medical in a telemarketing position, was subject to harassment, anti-gay epithets and a hostile work environment based on his sexual orientation.

In support of its arguments to dismiss the EEOC’s complaint, Scott Medical relied heavily on a prior Third Circuit case, Bibby v. Philadelphia Coca-Cola Bottling Co., which held that Title VII protections could not be extended to claims of discrimination based on sexual orientation. Despite this clear precedent, the court in Scott Medical stated that, “[i]ncremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace” and “discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple.” The court went on to say that “[t]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”

Judge Bissoon relied on the U.S. Supreme Court’s rationale in Price Waterhouse v. Hopkins, wherein the Supreme Court concluded that an employer who treats a woman differently on the basis of a belief that women should not be or cannot be aggressive, has engaged in sexual stereotyping and discrimination on the basis of gender. Judge Bissoon used this reasoning from Price Waterhouse to conclude that “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex’.”

So, what happens now based on the court’s decision in Scott Medical Health Center? Well, initially the case will proceed toward trial and an appeal to the Third Circuit may be forthcoming in the future. If appealed, the Third Circuit will likely be faced with reconsidering its prior decision in Bibby and other similar cases. Likewise, other courts throughout the country will be considering this same issue in the near future as the EEOC continues to champion the theory that Title VII prohibits discrimination based on sexual orientation.

In the meantime, employers should take a hard look at their Equal Employment Opportunity and Anti-Harassment policies, and consider adding sexual orientation and gender identity as protected classes. In addition, employers will need to response appropriately in the event of a complaint alleging harassment based on sexual orientation. It may also be a good idea to update your management training on this topic.

On September 9, 2016, the Pennsylvania Superior Court upheld an award of $4.5 million in punitive damages against several former employees, who violated non-compete/non-solicitation agreements with their former employers.  In B.G. Balmer & Co. Inc. v. Frank Crystal & Co., Inc., et al., the court determined that among other things, the former employees’ used confidential information and trade secrets they obtained during their employment to solicit more than twenty-five of their former employer’s more profitable clients.  The actions of the former employees were also in violation of the non-solicitation provisions contained in their employment agreements. The Superior Court’s full opinion can be found here.

In affirming the $4.5M punitive damages award, the Superior Court found that there was extensive evidence showing the blatant efforts of the former employees to lure away other Bamler employees as well as clients. More specifically, the Court noted that the former Executive Vice President and President of Strategic Planning formulated a plan with the new employer, a competing insurance brokerage agency, to entice other employees to leave and work for the new company.   As part of this plan, the former employees were encouraged to bring clients and customers with them after they departed their employment.

During the process of finalizing the planned departure, the new company was made aware that each of the employees were subject to the non-solicitation restrictions within their employment agreements.  Despite knowing this, the new company extended offers to all Balmer sales and marketing employees, which represented all Balmer’s employees other than the owner himself.  Prior to resigning from employment, several of the employees took confidential information and trade secrets including client lists and insurance policy details.  Shortly after receiving employment offers, all of the employees resigned from Balmer and utilized the confidential information and trade secrets to attempt to solicit and/or transfer clients’ to the new company.

The Superior Court affirmed the trial court’s finding that such conduct was sufficiently outrageous to award punitive damages. This decision is a reminder for employers about the potential value post-employment restrictive covenants, like non-solicitation provisions, have in protecting their workforce and customer/client base.  While punitive damages may not always be warranted as they were in the Balmer case, employers who utilize enforceable restrictive covenants like non-solicitation provisions, may be entitled to injunctive relieve as well as some form of compensatory and other damages when former employees breach restrictive covenants.

From a different perspective, this case is also a warning of the potential risks associated with hiring employees who may be subject to post-employment restrictions such as non-solicitation provisions.  When hiring new employees who are subject to restrictive covenants, employers would be well advised to understand the limitations imposed by such covenants and provide the new employee with specific directives to avoid any form of conduct that may be in violation of the restrictive covenants.  A failure to abide by the limitations of an enforceable restrictive covenant, may lead to exposure.

Since 2012, the United States Department of Labor (DOL) reports that it has recovered over $40 million in back wages for employees in the oil and gas industry.  Employers in the industry can expect claims to rise as the DOL continues its enforcement initiatives.  The leading cause of back pay awards? Worker misclassification.  The DOL’s nearly 1,100 investigations into the oil and gas industry’s workforce classifications have focused primarily on two areas; independent contractors and white-collar exemptions.

Misclassifying Employees as Independent Contractors

Many employers in the energy sector commonly pay certain types of workers on a per diem or flat rate basis, irrespective of the number of hours that they work.  Oftentimes, these workers are classified as independent contractors and many even enter into independent contractor agreements with their employers.  As many companies in the oil and gas industry have learned the hard way, these factors alone are not enough to establish the existence of an independent contractor relationship.  Instead, there are a number of criteria that must be met in order for a worker to be properly classified as an independent contractor (and lawfully exempt from minimum wage and overtime provisions of the Fair Labor Standards Act).  Employees in the energy sector who are misclassified as independent contractors are often entitled to considerable back pay due to the considerable amount of overtime that they work.

Misclassifying Employees as Exempt Based on Job Title

The DOL’s investigations of oil and gas employers also commonly uncovers employees who are misclassified as exempt from minimum wage and overtime requirements under the Fair Labor Standard Act’s white collar exemptions. These employees are frequently and improperly considered by their employers to qualify for the executive, administrative, or professional exemptions in particular.  Employers operate under the inaccurate assumption that these exemptions apply based upon the employees’ job titles which regularly include one or more of the following “buzzwords”: manager, foreman, engineer, technician, and specialist.  As the DOL has made clear, however, job titles are not determinative of exempt status.  Instead, employees’ salary levels and job duties are the true measure of whether they are eligible for these exemptions.

Employers in the oil and gas industry (and in general) are well-advised to ensure proper classification of workers who they consider as independent contractors or as exempt from minimum wage and overtime under a white collar exemption.  In the meantime, the DOL can be expected to continue pursuing its misclassification enforcement initiative.

Employers with more than 100 employees and federal contractors are probably more than familiar with the EEO-1 reporting requirements, but those requirements are about to change. On July 13, 2016, the Equal Employment Opportunity Commission published a revised version of a proposed rule to broaden the scope of data collected in the EEO-1 report. Earlier this year, the EEOC issued an initial version of the proposed rule, which would have required additional reporting on each of ten categories of employees and pay information reported by race and gender.  The July 13 version of the rule contained some key changes.

Changes to Proposed Rule

Under the new proposal, the EEOC will require reporting on an employer’s established pay ranges for positions and hours worked. In response to the comments received regarding the initial proposal, the revised proposal proposes moving the due date for filing the required report from September 30, 2017 to March 31, 2018. This change will allow employers to use employee’s W-2 earnings for reporting. Because of the revisions to the proposal, a new 30 day notice and comment period commenced with the release of the new revised proposal in the federal register.

Purpose of Data Collection

EEOC explained that it intends to use pay data for early analysis of discriminatory complaints. Investigators will examine the data for pay disparities and perform statistical analyses, yet to be determined in order to investigate whether compensation discrimination appears likely. EEOC has further stated that it will compare periodic reports on pay disparities by gender and race based on the data. Finally, the agency will use the data to enhance its support for training programs by, among other things, providing supporting evidence for training programs.

What Should I Do Now

EEOC actually pays attention to the comments it receives as is evidenced by the new revised proposed rule. We strongly encourage employers to make comments on the hardships the proposed revised rule would create. EEOC has remained silent on how it will account for the merit based non-discriminatory factors that could lead to differences in pay in the same job category. This is an issue we suggest employers should press heavily in their comments. Tenure, skill sets and even the broad nature of the job categories themselves can be pivotal in determining wage differences. Stay tuned, we will likely see more changes when the final rule is published.

 

A national home health care provider, doing business in York Pennsylvania as Epic Health Services, was recently issued a citation and significant fine by The Occupational Safety and Health Administration (OSHA) in connection with an assault of an employee by a client.

Even a sanitized version of the facts is disturbing. The employer provides health care and therapy services to clients in their homes. One of the employer’s home health workers was sexually assaulted by a client of the employer while working in the client’s home. Prior to this incident, another employee had specifically warned the employer about sexual assaults. In addition, the employer has received numerous prior reports of verbal, physical and sexual assaults directed toward employees, and of a concern that an employee was working in a home where domestic violence occurred.

Following a complaint by the assaulted employee, and resulting investigation, OSHA determined that the employer failed to adequately protect its employees from the dangers of workplace violence. More specifically, OSHA concluded that Epic Health exposed employees to risk of physical assault while provided home health care to clients and support services to family members, without any system in place for reporting or addressing threats or incidents of violence. In its official news release for this case, OSHA stated: “Epic Health Services failed to protect its employee from life-threatening hazards of workplace violence and failed to provide an effective workplace violence prevention program.”

Obviously, the fact that the employer ignored prior employee reports of hazards and the potential for violence at outside work locations (in clients’ homes) was considered significant in terms of OSHA’s conclusion that the employer failed to adequately protect its workers and provide a safe workplace.

As a result, the employer was cited for a “willful” violation for failing to maintain a safe workplace under OSHA’s General Duty Clause, which is a catch-all type provision that is applied when the issue under consideration is not covered by a specific regulation, as well as a second citation for several “other than serious” recordkeeping violations. In addition, the employer was hit with hefty fines totaling $98,000.00 (including the current maximum $70,000 fine for the willful violation plus an additional $28,000 for the recordkeeping violations).

In the primary citation, OSHA also stated a number of suggested abatement measures that the employer was encouraged to implement in an effort to address workplace violence issues and avoid future similar violations, including:

  • A written, comprehensive workplace violence prevention program;
  • A workplace violence hazard assessment and security procedures for each new client;
  • Procedures to control workplace violence such as a worker’s right to refuse to provide services in a clearly hazardous situation without fear of retaliation;
  • A workplace violence training program;
  • Procedures to be taken in the event of a violent incident in the workplace, including incident reports and investigations; and
  • A system for employees to report all instances of workplace violence, regardless of severity.

As with any OSHA citation, Epic Health Services has 15 days to request a conference with OSHA’s area director to discuss the findings and proposed penalties or file a formal contest with before the Occupational Safety and Health Review Commission to challenge the findings and penalties.

There are many lessons that the prudent employer can take from this case, including:

  • Always be on the lookout for and continuously assess safety and health risks and hazards in the workplace;
  • Keep your eyes and ears open, and listen to and consider legitimate employee concerns and complaints;
  • Don’t ignore, and apply safety programs to, outside/remote work locations;
  • Address safety risks in a timely manner;
  • Recognize that it’s an employer’s responsibly to assess risks and keep employees safe at work within established standards, even with respect to risks, hazards and dangers created by non-employees/third parties; and
  • Maintain, review and update as necessary appropriate and comprehensive policies and procedures addressing workplace safety.

All employers should be attentive to and serious about workplace safety issues, particularly considering OSHA’s ongoing aggressive enforcement efforts and the potential for significant liability (including that the already substantial maximum penalty amounts are expected to be significantly increased in the near future).   Don’t be the unprepared employer that is faced with the likely unfavorable and costly outcome of an unexpected OSHA investigation. Instead, take a proactive approach, review safety programs and overall OSHA compliance status now – before an investigator is at your door – and significantly reduce your risk of liability.

Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post and for further guidance regarding OSHA compliance and workplace safety issues.

The EEOC has recently issued guidance addressing a variety of issues under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and Title VII of the Civil Rights Act.

What is unique about this recent guidance is that the materials, entitled “Legal Rights for Pregnant Workers Under Federal Law,” “What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data,” and “Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work,” are directed at employees and physicians rather than employers. However, this guidance certainly offers a trove of helpful information that employers may rely on when necessary.

For instance, in “Legal Rights for Pregnant Workers”, the EEOC provides guidance regarding the employee’s right to an accommodation of any restrictions that may result from a pregnancy, particularly in the nature of altered break and work schedules, permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and/or permission to work from home. However, the guidance also notes instances in which accommodations would be unreasonable and therefore, unnecessary. Being primed to discuss some of those issues as part of the interactive process and referencing the guidance’s conclusion that “the ADA doesn’t require your employer to make changes that involve significant difficulty or expense” and that “if more than one accommodation would work (to address your restrictions), the employer can choose which one to give you” may help keep the employee engaged and effective in the workplace.

The materials directed at physicians are also helpful for employers, particularly because it can easily be attached to correspondence to the physician when requesting additional information about a potential employee accommodation issue. Employers often have to follow up with physicians because an initial request for accommodation comes in the form of a note scrawled on a prescription pad, with no explanation of the condition, the reason for the accommodation, and how the accommodation will address the circumstances of the condition. The EEOC’s resource should be of assistance to employers on these issues, where it notes that documentation from a physician is most helpful where it includes:

  • The nature of the patient’s condition. State the patient’s pregnancy-related medical condition.
  • The patient’s functional limitations in the absence of treatment. Describe the extent to which the medical condition would limit a major life activity (e.g., lifting, bending or concentrating), or a major bodily function (e.g. bowel or circulatory functions), in the absence of treatment or any other accommodation. If the symptoms of the condition come and go or are in remission, describe the limitations during an active episode. It is sufficient to establish substantial limitation of one major life activity or major bodily function.
  • The need for an accommodation. Explain how the patient’s medical condition makes changes at work necessary. For example, if your patient needs an accommodation to perform a particular job function, you should explain how the patient’s symptoms – as they actually are, with treatment – make performing the function more difficult. If necessary, ask your patient for a description of her job duties. Also explain to the employer why your patient may need an accommodation such as a schedule change (e.g., to attend a medical appointment during the workday.) Limit your discussion to the specific problems that may be helped by an accommodation.
  • Suggested Accommodation(s). If you are aware of an effective accommodation, you may suggest it. Do not overstate the need for a particular accommodation in can an alternative is necessary.

This language, at least, can be cited by employers in their correspondence to physicians regarding accommodations requests to better help advance these discussions quickly.

The Pay Data guidance relates to the recent proposal to begin collecting summary pay data by gender, race and ethnicity, and again is generally directed at employees to explain their rights to equal pay and how to enforce those rights. However, the one piece of additional news for employers is that the EEOC is continuing to pursue the revision of the EEO-1 for the collection of pay data and, sometime during this summer, will be submitting revisions for a second comment period before the proposal for data collection is finalized. We will keep you posted on this initiative.