Transcript A Potpourri of Employer Safety and Legal Issues

A POTPOURRI OF EMPLOYER
LEGAL AND SAFETY ISSUES
Black Swamp Safety Council
June 16, 2011
Cheryl F. Wolff
Anastasia K. Hanson
Spengler Nathanson P.L.L.
Presenters
Cheryl F. Wolff chairs Spengler Nathanson P.L.L.’s
Labor, Education and Public Law Service Group, and
advises clients on issues such as hiring, discipline and
discharge, employment policies, and compliance with
federal and state employment laws. She defends
employers in employment discrimination charges and
lawsuits, wrongful discharge lawsuits, grievance
arbitrations, and before the National Labor Relations
Board and State Employment Relations Board. Cherie is
a graduate of Miami University (cum laude, 1974) and
the Ohio State University College of Law (with honors,
1979). She is a frequent speaker on a variety of
employment issues.
Presenters
Before becoming a lawyer, Anastasia K. Hanson
("Stasia") spent fifteen years working for regional
corporations in human resources, workers
compensation, and insurance. Stasia brings this
business perspective to her practice as an employment
lawyer and focuses on litigation avoidance and employer
defense. Stasia advises employers on compliance with
FMLA, ADA, GINA, and Title VII and represents
employers at workers compensation hearings,
unemployment hearings and in state and federal court
litigation. She is a 2000 graduate of the University of
Toledo, College of Law, Magna Cum Laude, Order of the
Coif. Stasia is a partner with Spengler Nathanson P.L.L.
and presents on topics of interest to employers.
Guns in the Workplace
Ohio concealed carry law effective in
2004 allows Ohio residents to be
licensed to carry concealed handguns,
except in certain places.
Can’t take handgun into:
• Buildings owned by state or political subdivision
• Police stations, sheriffs’ offices, state highway patrol
stations, correctional institutions, courthouses
• School buildings, school premises, school activities,
school buses
• Churches and other places of worship (unless the
place of worship permits)
• Child day-care centers and type A, B, and C family
day-care homes
• State institutions for the mentally ill and for the
developmentally disabled
Can’t take handgun into:
• Rooms or open air arenas in which liquor is being
dispensed in premises for which a D liquor permit
has been issued (with certain exceptions, see R.C.
2923.121)
• Premises owned or leased by any public or private
college, university, or other institution of higher
education, unless the handgun is in a locked motor
vehicle or the licensee is in the immediate process of
placing the handgun in a locked motor vehicle
• Anyplace where federal law prohibits the carrying of
handguns
Ohio private employers
permitted to restrict firearms
“Nothing in this section shall negate or
restrict a rule, policy, or practice of a private
employer . . . concerning or prohibiting the
presence of firearms on the private
employer’s premises or property, including
motor vehicles owned by the private
employer.” R.C. 2923.126(C)(1)
Immunity
“A private employer is immune from liability
in a civil action for any injury, death, or loss
to person or property that allegedly was
caused by or related to the private
employer's decision to permit a licensee to
bring, or prohibit a licensee from bringing, a
handgun onto the premises or property of
the private employer.” R.C. 2923.126(C)(2)(a)
Signs
• Property owner may post sign in
conspicuous location on premises
prohibiting persons from carrying firearms or
concealed firearms on or onto those
premises. R.C. 2923.126(C)(3)(a)
• Exception for landlord and tenant with rental
agreement for residential premises. R.C.
2923.126(C)(3)(b)
Suggested Security
Inspections Policies
• Desks, lockers, and other storage devices may be
provided for the convenience of employees but
remain sole property of employer
• Therefore, they, and any articles found within them,
can be inspected by any employer representative at
any time, with or without prior notice
• To discourage theft and other policy violations,
employer may inspect persons entering and/or
leaving the premises and any packages or other
belongings including but not limited to tool or lunch
boxes and automobiles
Workplace Drug & Alcohol
Testing
Federal Survey 2008:
75% of all illicit drug users
80% of adult heavy alcohol users are
employed full-time.
• Construction industry – high for both
alcohol and illicit drug use.
• Construction industry – about 15% heavy
alcohol users; 17% illicit drug users.
• Accommodations/food service – 17% illicit
drug users.
• Cost of drug/alcohol use to employers
$75-$100 billion/year;
• 10 more likely to miss work;
• 5 times more likely to file a workers comp.
claim;
• 3.6 times more likely to be involved in a
work-related accident; and
• 33% less productive than nonusers.
Establishing a Program
• Develop a comprehensive written policy.
• Decide on testing scope: baseline, postoffer, post-accident, random, and
reasonable suspicion.
• Decide on testing protocol/identify vendor.
• Train supervisors and employees.
• Select response to positive tests.
Legal Issues
• Compliance with federal laws – is your
workplace covered by:
– U.S. Dept. of Transportation
– U.S. Dept. of Health/Human Services – drug
testing guidelines for federal employees;
– Drug-Free Workplace Act (more than $25,000
in business w/ federal govt. – does not require
drug testing)
• Compliance w/ federal regulations trumps
other considerations.
• Ex.: state medical marijuana laws.
• Employer must comply with federal rules.
Americans w/ Disabilities Act
•
•
•
•
•
May prohibit drug/alcohol use.
May test.
May discharge for illegal drug use.
May discharge for use of alcohol.
May require all employees to meet same
performance standards.
But,
• An alcoholic is probably an "individual with
a disability" under the ADA as amended in
2008.
• Must consider whether leave is a proper
accommodation for the disability.
• Casual illegal drug users are “not
disabled,” but individuals with a record of
addiction, or who are erroneously
perceived as being addicts, may be
“disabled” and subject to accomodation.
• Employers may not discriminate against drug
addicts who are not currently using drugs and
have been rehabilitated or have a history of drug
addiction.
• Employers may not discriminate against drug
addicts who are currently in a rehabilitation
program. (The EEOC has clarified that a
rehabilitation program includes inpatient or
outpatient programs, Employee Assistance
Programs, or recognized self-help programs
such as Narcotics Anonymous.)
• Reasonable accommodation efforts, such
as allowing time off for medical care, selfhelp programs, etc., must be extended to
rehabilitated drug addicts or individuals
undergoing rehabilitation.
• Source:
http://www.dol.gov/asp/programs/drugs/wo
rkingpartners/regs/ada.asp
Family and Medical Leave Act
• Can terminate for substance abuse if have
a nondiscriminatory termination policy for
substance abuse (even if leave would be
used for substance abuse treatment).
• In the absence of such a policy,
alcoholism or substance abuse may be a
“serious health condition” and leave for
treatment may be required.
Genetic Information
Nondiscrimination Act (“GINA”)
• Regulates an employer’s access to
“genetic information” of employees.
• Drug and alcohol test results are not
genetic information and are not regulated
by GINA.
Collective Bargaining Agreements
• Drug and alcohol testing is a mandatory subject of
bargaining when employees are not in “safety sensitive”
positions requiring action by the employer in the interest
of public safety or in furtherance of the employer's
overall mission; in those instances where the employer
demonstrates an overriding management objective, the
decision itself need not be bargained but only the
affected wages, hours, terms and conditions of
employment.
• In re Canton, SERB 94-011 (6-29-94).
• Best practice: involve the union in response to a drug or
alcohol situation.
Title VII Considerations
• Prohibits discrimination based on race,
color, sex, religion, national origin.
• ADA – disability
• ADEA – age
• State and local laws – may add conditions.
• Implement policy consistently to avoid
claims of discrimination.
Other Potential Claims
• Defamation arising from “publicized” drug
tests results.
• Intentional infliction of emotional distress.
• Invasion of privacy – arising from drug
testing protocols.
– U.S. Sup. Ct. – drug testing does not violate
4th Amend. search and seizure rights.
Whistleblowing and Other
Protected Employee Activity
Federal and state statutes and case law
prohibit discharges or other adverse
employment actions which result from
certain employee activities.
Protected Activities
• Exercising rights or making complaints
under federal laws such as Family and
Medical Leave Act, National Labor Relations
Act, Employee Retirement Income Security
Act, Fair Labor Standards Act, Uniformed
Services Employment and Reemployment
Rights Act, Immigration Reform and Control
Act, Occupational Safety and Health Act
More Protected Activities
• Filing charge, participating in investigation, or
opposing employment practice made unlawful by
state or federal anti-discrimination laws
• Filing workers compensation claim
• Activities protected by Ohio public policy (courtcreated exceptions to employment-at-will), such as:
– Consulting attorney
– Testifying truthfully against employer
– Reporting supervisor about to drive intoxicated
Ohio Whistleblower Law
(R.C. 4113.52)
Situations Covered
• Employee becomes aware, in course of
employment, of violation of governmental
statute, ordinance or regulation that
employee's employer has authority to correct
• Or of violation by fellow employee of
governmental statute, ordinance or
regulation or employer work rule or policy
Situations Covered - continued
• And employee reasonably believes
violation is criminal offense likely to
cause imminent risk of
– Physical harm to persons
– Hazard to public health or safety
– Felony, or
– Improper solicitation for campaign
contribution
Steps Employee Must Take to Gain
Whistleblower Law’s Protection
• Orally notify supervisor or other responsible
employer officer of the violation
• And subsequently file with that supervisor or
officer a written report identifying and
describing the violation
Employer Responsibilities
• Must notify employee who makes such a report of
any employer effort to correct alleged violation or
hazard, or of absence of the alleged violation or
hazard
• This written notice must be within 24 hours after
employee’s oral notice or employer’s receipt of
written report, or by close of business on next
regular business day after day on which oral notice
was made or report was received, whichever is later
For a violation the employer has
authority to correct:
• If employer does not correct or make
reasonable, good faith effort to correct
violation within 24 hours after oral
notification or receipt of report, whichever is
earlier, then employee may file written report
of violation with prosecutor, peace officer, or
other appropriate public official or agency
with regulatory authority
Ohio Whistleblower Law:
Special Situations
• Employee becomes aware, in course of
employment, of criminal violation of Ohio
laws on air pollution control, solid and
hazardous waste, safe drinking water, or
water pollution control
• Employee directly may notify any appropriate
public official or agency with regulatory
authority over employer and industry, trade,
or business in which employer is engaged
Retaliation Against
Whistleblower Prohibited
• Employer must not take any disciplinary or
retaliatory action against an employee for
making any report described above
• Or as result of employee's having made
inquiry or taken other action to ensure
accuracy of information reported in either
situation
Protection for Employers
• Employee must make reasonable, good
faith effort to determine accuracy of
any information reported
• Employee who makes report without
making such an effort may be subject
to disciplinary action
Civil Whistleblower Action
• Employee may bring civil action
against employer that disciplines or
retaliates for employee’s making
protected report
• Relief available: Injunction;
reinstatement; back wages, benefits
and rights; attorney fees
Safety, Discipline, and
Workers Compensation
Some Legal Issues
• Employees may be disciplined for workrelated accidents in which they are injured.
• If a proper ground work has been laid, an
employee may be terminated.
• Issue: can employer show the termination
was motivated by safety violations not the
filing of the workers compensation claim?
• R.C. 4123.90 prohibits retaliation by an
employer against an employee for filing a
workers compensation claim.
• The employee must show that: 1) she was
injured on the job; 2) she filed a workers
comp. claim; and 3) there was a casual
connection between filing the claim and
her termination.
• If the employee can show those three
things, the burden shifts to the employer to
show the reason for the termination was
not a pretext.
• Cunningham v. The Kroger Co. (1st Dist.),
2006-Ohio-5900.
• Worker employed for four years as a fork
lift operator.
• Received hands-on and computer-aided
training.
• Received written safety materials.
• Attended daily safety meetings.
• Two months before the injury accident,
she backed into another forklift.
• Disciplined (3-day suspension) for not
following safety rule – honk horn/look over
shoulder.
• Kroger used a Dok-Lok system to hold
trucks to loading dock.
• Day of accident drove onto truck and felt a
dip but did not investigate.
• Drove back and truck separated from dock
and operator fell to ground.
• She was awarded TT.
• Kroger terminated her for the second
safety violation.
• She filed suit under the no retaliation
statute.
• Court said: no evidence firing related to
filing WC claim.
• Kroger would have fired her under its
safety program whether or not she filed a
claim.
But,
• Employee receives TT unless employer
can show injury was the result of an
intentional act sufficient to constitute
abandonment of employment.
This presentation and outline are
meant to assist in a general
understanding of the law and are
not intended as legal advice.
Questions regarding specific
issues should be directed
to appropriate counsel.
QUESTIONS?
Contact Spengler Nathanson P.L.L.
www.snlaw.com
419-241-2201
Susan Nelson
419-252-6217
[email protected]
Cheryl Wolff
419-252-6238
[email protected]
Anastasia Hanson
419-252-6250
[email protected]