Commentary & Opinion Archives - Page 66 of 85

September 15, 2016June 29, 2023

NLRB Is Now Basically Creating Unfair Labor Practices Out of Thin Air

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

The case involved drivers for a drayage company, whom the company classified as independent contractors. The company opposed a union’s efforts to organize the drivers on the ground that they were not employees covered by the National Labor Relations Act. Even after the NLRB determined that the purported contractors were employees subject to organizing, the employer still refused to re-classify them as employees.

In response, the NLRB Office of General Counsel concluded “that the Region should issue a Section 8(a)(1) complaint alleging that the Employer’s misclassification of its employees as independent contractors interfered with and restrained employees in the exercise of their Section 7 rights.” On the one hand, the GC’s decision makes some sense. If the NLRB determines that you have intentionally mis-classified employees with the specific intent of avoiding a union, then you have likely interfered with the rights of those employees to organize.

Yet, the GC’s decision goes well beyond the facts of the case, and concludes that even a “preemptive strike” in advance of any organizing campaign violates employees’ section 7 rights.

The Employer’s misclassification suppresses future Section 7 activity by imparting to its employees that they do not possess Section 7 rights in the first place. The Employer’s misclassification works as a preemptive strike, to chill its employees from exercising their rights under the Act during a period of critical importance to its employees—the Union’s organizing campaign.

Employers, thanks to the NLRB, your risk of employee mis-classifications (which is already sky high) just increased. Get ready to start fighting a two-front war against your independent contractors. Savvy plaintiffs’ lawyers simultaneously will file the FLSA lawsuit in federal court and, based on this Advice Memorandum, the unfair labor practice charge with the NLRB. Since an NLRB charge typically moves faster than a federal wage/hour lawsuit, expect the (unfavorable) Board decision first, and expect your contractors to argue the conclusive and binding effect of that decision in the FLSA lawsuit.

The NLRB is wading into uncharted and dangerous waters — creating an unfair labor practice out an alleged wage/hour violation. Moving forward, expect the employee friendly NLRB, and not federal judges, to decide whether you have classified your workers properly. This development is decidedly not to your benefit.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 12, 2016June 29, 2023

Developing an Effective Financial Wellness Strategy

Financial wellness is a trendy phrase nowadays in the wellness space. People don’t want to worry about money, and companies want employees not to worry about their finances, either. It makes sense that employees will be more productive at work, and employers can get the most out of their workers if they’re not fretting about their finances. But let’s take a step back for a moment and consider what financial wellness even means.

The whole definition has changed within the past 10 years, said Dorothy Miraglia-King, strategic benefits consulting expert and executive vice president at Engage PEO, a company that provides HR solutions for small and mid-sized businesses. Ten years ago, financial wellness meant retirement savings. But the idea of what retirement looks like has changed dramatically in the past decade. It’s not as realistic for people to retire at 65 anymore, for example. People are living and working longer. What about all the life that happens before retirement that requires financial health?

Another dramatic change? The multigenerational workforce: baby boomers, millennials, Gen X and Gen Y, all working together.

I recently wrote about how, at the basic level, employees in every generation want the same thing. They’re interested in the same benefits and life-long financial goals. However, they’re at different steps in obtaining those goals. Their immediate financial needs are dependent on where they are in life. Based on these more short-term differences, I spoke with Miraglia-King about how a company can develop a successful financial wellness program.

The first step, she said, is to create a measurable objective. For example, “I want employees to understand their 401(k)s better.”

Financial health objectives may be dependent on the employee demographic. One company’s workforce is not the same as the other. A millennial who needs to learn how to manage credit card debt or how to acquire a mortgage or how to put together a financial plan has a different objective than someone in their 50’s who’s figuring out if they can retire in 10 years.

The employer has to ask, “What do my employees look like?” when defining financial health.

In general, millennials may be interested in things like paying off student debt and managing basic living expenses. Also: balancing a checking account. This is one example of a financial skill that certain generations never learned because of how quickly technology took over everything.

“You’d be surprised at how little people know about balancing a checking account,” Miraglia-King said. “We don’t use paper anymore, so balancing a checkbook is a skill that’s gone away. A financial wellness objective could be learning how to manage money online.”

Once the employer has developed the need (the objective), Miraglia-King said, they should develop the communications strategy that identifies the audience and looks at method of delivery. How do employees prefer to get their information? Something electronic or written? In an email campaign or through access to an adviser? Maybe a weekend workshop?

Employers should also consider how will they measure what’s occurring and what changes happen as a result of the initiative. They could, for example, use a survey at the beginning and the end to see if they’ve met the objectives.

This should be a continuous process: Financial well-being, like physical and mental well-being, is something that needs to be constantly worked on and improved. There’s no easy fix. As employees age or face different hurdles in their lives, there’ll be something new to learn.

One final topic we spoke about in creating an effective financial wellness program: the importance of having high-level support.

“Lead by example,” Miraglia-King said. “Your upper management must set the tone for any campaign you do, and financial wellness is no exception.”

Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

September 6, 2016June 29, 2023

The ADA and Prescription Meds: What You Need to Know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you: It depends.

Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.

According to EEOC’s lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identified by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

The EEOC contends that the employer violated the ADA by maintaining a “blanket exclusion policy” for certain prescription medications, and refusing to consider an exception to its drug testing policy as a reasonable accommodation. Indeed, according to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, in most cases an employer cannot even ask about prescription drugs:

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In other words, it is the rare case in which an employer is justified in asking about prescription meds, or disqualifying from employment one who tests positive.

How is an employer supposed to to maintain a safe workplace in light of these limitations? Here are four thoughts.

Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
Drug testing. Drug testing programs can include legally prescribed drugs. An employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

“What about medical marijuana,” you ask? How do these ADA concerns impact its impending legality? I’ll have more to say about this in a future post, but, most of the courts that have examined the issue of workplace drug testing for states in which medical marijuana is legal have concluded that the ADA does not protect medical marijuana because the drug remains illegal under federal law.

Stay tuned, however, as the issue of medical marijuana under the ADA is nuanced and certainly developing and subject to change.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

August 31, 2016June 29, 2023

Back to Basics: Appealing to a Multigenerational Workforce

I recently had an eye-opening generational experience while at a Slovenian picnic a few weeks ago. The crowd was varied (made up of the Slovenians who had immigrated to Chicago in the early 20^th century and their descendants): 80-something-year-old immigrants who sit on picnic benches the whole time and have long conversations in their Eastern European tongue, 50-somethings playing bocce ball with a beer in hand and the 20-somethings like me.

The people in my parents’ generation undoubtedly talk about work or when they can finally retire. Where should they invest? Will retirement be in 10 or 15 years? Will they retire in Arizona or Texas or Asia? They speak like they’re one of those persnickety couples on House Hunters International, saying things like, “I really don’t care where we live as long as we’re five minutes from the beach,” and “But we could get a much better deal if we’re willing to move further from the beach!”

The people in my grandparents’ generation also bring up work and retirement, like when my grandfather shows off his construction union retirement gift (a gold watch that’s probably fake, he points out) and tells stories about his job.

Meanwhile, my similarly aged cousins and I have different thoughts on the same topic. Like on the evening news, my cousin and I both had a minor panic attacks when the anchor said something along the lines of, “College graduates today may not be able to retire until age 75.” That’s a big jump from 65. I’m hoping that’s a case of exaggeration for the sake of ratings.

In any case, it hit me that despite this huge generational divide between my parents and grandparents, we care about the same thing: security. The only difference is, we’re in very, very different places.

Much like my large, extended family, the workforce is multigenerational. That can seem daunting to a company managing employees in five different generations, but it’s less daunting when you consider that ultimately most people want the same thing. They’re just in different places in their lives in terms of attaining it.

WF_0831_WorkingWell_MillenielBenefits_Hernandez — Acclaris’ Carlos Hernandez

“Millennials don’t necessarily look at benefits in a wildly different way than the other generations. They’re worried about base pay, bonuses, retirement,” said Carlos Hernandez, vice president of strategic alliances at Acclaris, an information technology and services provider that manages health care plans. As an employer, “you have to offer the basics.”

Where there may be a difference, though, is the messaging itself, added Hernandez, who has more than 25 years of experience in the health care industry advising employers on how to best meet their benefits goals. Companies, when considering benefits offerings, have to use different messaging to different groups — like age groups — to show the value points they have. But it’s still the same program underneath that skin.

One way to facilitate the access to information, for example, is bring a financial firm to a lunch and learn every month and let employees sign up to speak to an adviser, Hernandez noted. This could be appealing to a baby boomer who’s retiring in 15 years, or someone just starting out their career who wants to get on the right path.

Also useful to facilitate access is a creating a touchpoint, like a mobile app or portal or private conference room, he added. Companies could use something like this to deliver services and guidance in private.

Finally, in terms of managing a multigenerational workforce, he suggested creating a committee or a strategic forum made up of employees of every generation. These representatives of the company could talk about issues, like financial or health benefits, from their own points of view.

“That sense of involvement cannot be understated,” he said.

Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

August 31, 2016June 29, 2023

Did the NLRB Do More Harm Than Good By Permitting Teaching and Research Assistants to Organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants.

This case has received widespread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect.

Non-Confidential Investigations. If your son or daughter is sexually harassed by a student assistant and an investigation by the university ensues, the university will violate federal law (the NLRA) if it routinely asks other student-assistant witnesses to keep confidential what is discussed during the university’s investigation.
Witness Statement Disclosure. In the above example, witness statements submitted by your son or daughter about sexual harassment by a student assistant must be disclosed to the union, unless (i) the university can prove that the statement’s submission was conditioned on confidentiality, and (ii) even then, the statement must be disclosed unless the university can prove that your son or daughter needs protection, or other circumstances outweigh the union’s need for the witness statement.
Invalidating Rules Promoting Civility. The university will be found to have violated the NLRA if it requires student assistants to maintain “harmonious interactions and relationships” with other students.
Invalidating Rules Barring Profanity and Abuse. The university cannot adopt a policy against “loud, abusive or foul language” or “false, vicious, profane or malicious statements” by student assistants.
Outrageous Conduct by Student Assistants. The university must permit student assistants to have angry confrontations with university officials in grievance discussions, and the student assistant cannot be lawfully disciplined or removed from his or her position even if he or she repeatedly screams, “I can say anything I want,” “I can swear if I want,” and “I can do anything I want, and you can’t stop me.”
Outrageous Social Media Postings by Student Assistants. If a student assistant objects to actions by a professor-supervisor named “Bob,” the university must permit the student to post a message on Facebook stating: “Bob is such a nasty mother fucker, don’t know how to talk to people. Fuck his mother and his entire fucking family.”
Disrespect and Profanity Directed to Faculty Supervisors. The university may not take action against a student assistant who screams at a professor-supervisor and calls him a “fucking crook,” a “fucking mother fucking” and an “asshole” when the student assistant is complaining about the treatment of student assistants.

The dissent concludes:

It is also a mistake to assume that today’s decision relates only to the creation of collective-bargaining rights. Our statute involves wide-ranging requirements and obligations.… Therefore, parents take heed: if you send your teenage sons or daughters to college, the Board majority’s decision today will affect their “college experience”….

The above examples constitute a small sampling of the unfortunate consequences that will predictably follow from the majority’s decision to apply our statute to student assistants at colleges and universities. The primary purpose of a university is to educate students, and the Board should not disregard that purpose in finding that student assistants are employees and therefore subject to all provisions of the NLRA.

I could not agree more.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

August 30, 2016June 29, 2023

The Problem With You vs. Them

It starts out with good intentions to celebrate diversity, ensure equity and practice inclusive leadership. You implement employee resource groups for historically underrepresented groups like LGBTs, start a mentoring program for women of color, and equip leaders to coach millennials on workplace norms and professionalism. But after a while you revisit your D&I metrics and find you haven’t met your goals. In fact, your results are slightly worse than when you started.

What’s going on?

The problem may be an incomplete or misguided sense of what inclusion is. Like the rest of your leadership team, you’re smart and well intended and have a commitment to D&I grounded in supporting employee brilliance and excellence, which generate tangible results for your organization. You believe one way to accomplish this is to help certain identity groups feel more a part of things, supported in their professional development and generally brought into the fold.

The problem with this approach is that it’s an assimilation model based on the notion that “they” must be more like “you” to succeed and add value. It subtly communicates that “you” are superior and “they” are inferior and need fixing.

This presents a power imbalance that doesn’t leverage the real reason diversity plus inclusiveness gets better results: multiple brains contributing their unique brilliance to form a bigger combined brain that generates more ideas and makes better decisions. True inclusion or inclusiveness isn’t just about hearing all voices and taking them seriously; it’s about ensuring shared power and equitable involvement in decision making. True inclusiveness means that “you” too are open to exploring what “they” bring and changing how “you” do things.

Consider the way millennials are commonly viewed and treated in the workplace. I often hear negative, even emotional opinions expressed about millennials’ supposed lack of work ethic and poor workplace habits in stereotypical terms, which if used to discuss a group of color would likely result in serious outcry and lawsuits.

The dominant belief is that these young people must be taught how to behave correctly. However, there isn’t anything inherently correct or superior about leaving earbuds at home, staying off phones in meetings, following orders without giving feedback or insisting on personal benefit.

Behaviors are assigned meaning within a particular set of beliefs and norms, also known as culture. Common behaviors exhibited by millennials and other identity groups can actually add value if explored with curiosity and commitment to win-win solutions. New, even odd behaviors can provide tremendous positive results, especially within the context of their cultural frame, which — like it or not when it comes to millennials and people of color — is the future. If you have doubts, read this article about how millennials are doing exactly that in organizations, including Starbucks, that listen and adapt.

At the same time, there are new or different behaviors that don’t add value, and the old way is demonstrably better in terms of business impact, productivity, results, engagement or just plain workplace awesomeness. Perhaps a certain dress code, work station layout, schedule or set of meeting norms really are the best fit to support your organization’s vision, mission, goals and objectives.

The key to success is taking the time to explore, engage and devise creative solutions that maximize benefit to all parties, not just you. This includes gathering data to determine what is true and not based on assumptions. For example, is it really true that your customers fear employees with tattoos or don’t take them seriously if they don’t wear ties?

Creating an inclusive culture isn’t “either-or”: either requiring “them” to adapt and assimilate to you or you offering everything up for debate and input by “them.” The answer is “both-and,” which requires time, effort and intentionality at first, but pays huge dividends over time and allows “you” to ensure your sustainability and relevance into a future dominated more by “them.”

Susana Rinderle is president of Susana Rinderle Consulting LLC. Comment below or email editors@workforce.com.

August 30, 2016June 29, 2023

What Employers Can Learn from EEOC’s New Enforcement Guidance on Retaliation

The EEOC on Aug. 29 published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue.

After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The lengthy guidance addresses retaliation under each of the statutes enforced by EEOC, and includes a discussion of the separate “interference” provision under the ADA, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

In addition to the enforcement guidance, the EEOC also simultaneously published a summary Q&A and a short Small Business Fact Sheet.

The guidance offers in depth discussions of protected activities, adverse actions, and causation, and is required reading for all employers. I’d like to focus on the document’s coda, titled, “Promising Practices,” which discusses policies, training, and organizational changes employers can implement to reduce the likelihood of retaliation.

A. Written Employer Policies
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do. The policy should include:

Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation because they would likely deter a reasonable person from engaging in protected activity;
Proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
A clear explanation that retaliation can be subject to discipline, up to and including termination.

Employers should consider any necessary revisions to eliminate punitive formal or informal policies that may deter employees from engaging in protected activity, such as policies that would impose materially adverse actions for inquiring, disclosing, or otherwise discussing wages. Although most private employers are under no obligation to disclose or make wages public, actions that deter or punish employees with respect to pay inquiries or discussions may constitute retaliation under provisions in federal and/or state law.

B. Training

Employers should consider these ideas for training:

Train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.
Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.
Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace, ensuring that employees are aware of what conduct is protected activity and providing examples on how to avoid problematic situations that have actually manifested or might be likely to do so.
Offer explicit instruction on alternative proactive, EEO-compliant ways these situations could have been handled. In particular, managers and supervisors may benefit from scenarios and advice for ensuring that discipline and performance evaluations of employees are motivated by legitimate, non-retaliatory reasons.
Emphasize that those accused of EEO violations, and in particular managers and supervisors, should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.
Include training for management and human resources staff regarding how to be responsive and proactive when employees do raise concerns about potential EEO violations, including basics such as asking for clarification and additional information to ensure that the question or concern raised is fully understood, consulting as needed with superiors to address the issues raised, and following up as soon as possible with the employee who raised the concern.
Do not limit training to those who work in offices. Provide EEO compliance and anti-retaliation training for those working in a range of workplace settings, including for example employees and supervisors in lower-wage manufacturing and service industries, manual laborers, and farm workers.
Consider overall efforts to encourage a respectful workplace, which some social scientists have suggested may help curb retaliatory behavior.

C. Anti-Retaliation Advice and Individualized Support for Employees, Managers, and Supervisors

An automatic part of an employer’s response and investigation following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. As part of this debriefing, managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

Provide tips for avoiding actual or perceived retaliation, as well as access to a resource individual for advice and counsel on managing the situation. This may occur as part of the standard debriefing of a manager, supervisor, or witness immediately following an allegation having been made, ensuring that those alleged to have discriminated receive prompt advice from a human resources, EEO, or other designated manager or specialist, both to air any concerns or resentments about the situation and to assist with strategies for avoiding actual or perceived retaliation going forward.

D. Proactive Follow-Up

Employers may wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance. This provides an opportunity to identify issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation. It also provides an opportunity to give ongoing support and advice to those managers and supervisors who may be named in discrimination matters that are pending over a long period of time prior to reaching a final resolution.

E. Review of Employment Actions to Ensure EEO Compliance

Consider ensuring that a human resources or EEO specialist, a designated management official, in-house counsel, or other resource individual reviews proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons. These reviewers should:

Require decisionmakers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision;
Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize the need for consistency to managers;
Where retaliation is found to have occurred, identify and implement any process changes that may be useful; and
Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies, identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified.

While many of these tips seem like common-sense HR practices, the guidance serves a good reminder to review and, if necessary, update policies, train management and employees, and stay current with the law. While we, as employers and their advocates, tend to beat on the EEOC for its pro-employee advocacy, the proactive advice set forth in its retaliation guidance is solid and should not be ignored.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 28, 2016June 29, 2023

OSHA Says ‘Negative’ to Post-Accident Testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on Aug. 10, but OSHA has stated that it is delaying enforcement until Nov. 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 26, 2016June 29, 2023

For God’s Sake, Think Before You Email

I have lots of readers. Thousands upon thousands. Do you know who doesn’t read my blog, however? Former DNC chair (and Congresswoman) Debbie Wasserman Schultz. How do I know? Because, if she does, she would have read this:

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun.

And this:

Unlike diamonds, email messages aren’t forever, but they are pretty darn close. Employers need to train managers and supervisors to be vigilant in their care about what they reduce to writing in emails. Emails, especially those pertaining to the employment (or impending unemployment) of those in a protected class, must be vetted and re-vetted before being sent. Ask yourself this question: “Would I want this email read to a judge or a jury?” Unless the answer is an unequivocal “Yes”, do not send it.

And this:

Email is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

Please, please, please, please, please … email should not be your default communication tool. It leaves a trail, and you cannot assume that trail is ever private. Just ask Debbie Wasserman Schultz. If anything you are writing gives you any pause at all as to whether it should be in writing, pick up the telephone, or meet for a cup of coffee. You’d think as ubiquitous as email has become we would all know this lesson by now. Debbie Wasserman Schultz reminds us that this is a lesson worth repeating.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 25, 2016June 29, 2023

Ohio Supreme Court Sides With Workers’ Comp Fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.

It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

In Onderko v. Sierra Lobo, Inc. [pdf], the Ohio Supreme Court recently held:

The necessary elements of a prima facie case of retaliatory discharge under R.C. 4123.90 do not include proof that the plaintiff suffered a workplace injury.

Lest you think I’m relying on scare tactics, the case actually involved an employee fired after filing a false workers’ comp claim against his employer. The court tried to reason otherwise (“Filing a false claim or making misleading statements in order to secure workers’ compensation is a crime in Ohio. … We resist interpreting the anti-retaliation statute in such a way that would vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”).

Nevertheless, the facts of Onderko are what they are. The employer fired Onderko for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. He injured his knee while pumping gas on his way home from work, and falsely tried to claim that the gas-pump injury was an exacerbation of an earlier work injury.

We should all be troubled by a judicial decision that discourages employers from terminating dishonest employees. Sadly, only one of the court’s justices was similarly troubled, writing the following in dissent:

A court should not construe the statute in a manner to encourage fraudulent claims for workers’ compensation benefits, and here, the Bureau of Workers’ Compensation determined that there was no workplace injury. The evidence therefore supports the trial court finding that Sierra Lobo, Inc., fired Onderko for filing a fraudulent claim.

Nevertheless, we are left with Onderko as the law in Ohio. It no longer matters whether the workers’ compensation injury underlying a retaliation claim is legitimate or illegitimate, or the employee filing such a claim is truthful or a perpetrator of a fraud. And, sadly, that’s no lie.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.