I am no fan of the NLRB and its aggressive agenda over the past few years. And, it appears I donât stand alone.
Check out these scathing words from the D.C. Circuit Court of Appeals in Heartland Plymouth Court MI v. NLRB[pdf], in which the appellate court ordered the NLRB to pay the employerâs $17,649 in legal fees for the boardâs bad faith litigation by continuing to pursue a case that the NLRB knew it could not win. Why? Because the NLRBâs position ran counter to the law of every single appellate court.
Facts may be stubborn things, but the Boardâs longstanding ânonacquiescenceâ towards the law of any circuit diverging from the Boardâs preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: âWe donât care what the law says, if you want to beat us, you will have to fight us.â âŚ
We recognize the Boardâs unimpeded access to the public fisc means these modest fees can be dismissed as chump change. But money does not explain the Boardâs bad faith; âthe pleasure of being above the restâ does. Let the word go forth: for however much the judiciary has emboldened the administrative state, we âsay what the law is.â In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.
When an employer presents an agreement to an employee ancillary to the separation of that employeeâs employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.
Confidentiality, non-disparagement, and other âgagâ provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.Â
Last month, OSHA published new guidance, part of its revisions to its Whistleblower Investigations Manual, which seeks to free employees to report safety and other violations to the government.
As part of OSHAâs administration of myriad whistleblower protection statutes, OSHA reviews settlement agreements between complainants and their employers. OSHA only approves such agreements that it deems to be fair, adequate, reasonable, and in the public interest, and if the employeeâs consent was knowing and voluntary. If OSHA encounters a provision that prohibits, restricts, or otherwise discourages an employee from participating in protected activity, it will reject the agreement until the employer removed the allegedly offensive provision.
OSHAâs updated guidance clarifies the criteria OSHA will use to evaluate whether an agreement impermissibly restricts or discourages protected activity.
Moving forward, OSHA will not approve any of the following âgagâ provisions:
A provision that restricts the employeeâs ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on an employerâs past or future conduct. For example, OSHA will not approve a provision that restricts an employeeâs right to provide information to the government related to an occupational injury or exposure.
A provision that requires an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employerâs past or future conduct.
A provision that requires an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.
A provision that requires an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency, or that requires an employee to remit any portion of such an award to the employer.
So, what is an employer to do? How can an employer secure as much finality as possible while satisfying OSHAâs stance against gag provisions? OSHA suggests prominently inserting the following clause into the agreement:
Nothing in this Agreement is intended to or shall prevent, impede or interfere with complainantâs non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in proceedings regarding Respondentâs past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.
Another suggestion? Donât go this alone. Work with your labor and employment counsel to ensure that your agreements are up to date with the ever changing legal landscape. If you havenât recently updated your âstandardâ release, now is a good time to do so. The government is watching.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
A federal jury has found in favor of the EEOC in a federal disability discrimination lawsuit against the retail giant Dollar GeneralâŚ. EEOC had charged Dollar General with firing a cashier at its Maryville, Tenn., store because of her need to treat her diabetes. Â
According to EEOCâs suit, the cashier, an insulin-dependent diabetic, told her supervisor she was a diabetic and requested on several occasions that her supervisor allow her to keep juice near the register to prevent a hypoglycemic attack. At trial, the cashier testified that her supervisor told her that Dollar General did not allow employees to keep food or drink near the register. âŚÂ
While alone in the store one day, the cashier drank orange juice prior to purchase, in violation of Dollar Generalâs âgrazingâ policy, in response to symptoms of a hypoglycemic attack and to protect the store. As soon as the medical emergency passed, the cashier paid for the bottle of orange juice that cost $1.69 plus tax. Later, the district manager and loss prevention manager appeared in the store to address inventory shrinkage and fired the cashier after she admitted to drinking orange juice prior to purchase. The store fired the empÂloyee even though it knew she drank the orange juice because of her diabetes and that she had requested to keep juice near the register. âŚÂ
The jury returned a verdict âŚÂ for EEOC and the victim, awarding the former cashier $27,565 in back pay and $250,000 in compensatory damages.
When an employee requests an accommodation that costs a grand total of $1.69, make the accommodation. Never mind that the employeeâs manager was ignorant of the companyâs accommodation policy that would have permitted the employee to keep a drink near her register.
Truthfully, there is no magic here, just a stunning failure of common sense, not to mention legal obligation.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isnât pretty.
The jury foreperson passed the following letter to the judgeâs bailiff:
As the jury foreperson in this trial, I feel compelled to share the following with you. It has come to a point in the trial where the jury agrees that there was some degree of wrong doing by the Defendant and some agree that also on the Plaintiffâs part. At this juncture, jurors have started to make personal attacks on others and brought othersâ children and even God and Religion into their decision making process. Much to my dismay, one juror has referred to two other jurors as pigs because they are business owners and the Defendant is a business owner. One has taken a personal stance and said I will never understand until this happens to my two daughters. I have tried with little or no success to mediate these events and have repeatedly read the jury charges to them. Many, mainly the women, are too passionate and can not set their passions aside to consider the testimony put before them as their basis for the decision making process. We have one juror with a sprained or strained back from a car accident that is very rational and a good juror, but, in light of his discomfort some of the other jurors are starting to leverage him because they know he is in pain and wants to just go home. I am very disturbed by the fact that some jurors are merely just wanting to send a message without making decisions based on the evidence presented and testimony that has taken place over the last 7 days.
Ultimately, the jury reached a verdict for the plaintiff.
Yet, what does this letter illustrate?
Jurors were making ad hominem attacks on each other, some of which focused on jurorsâ children and religion.
Jurors disparaged the parties.
Jurors leveraged anotherâs medical condition to pressure him into a decision.
Jurors let their personal experiences override the facts as presented in the case.
What does this one glimpse into the jury process show? That this jury tried to rely on everything but the facts to reach a decision. We hope that jurors leave their prejudices outside the deliberation room and focus on the testimony and evidence presented during the trial. This one example shows that this hope is not always satisfied.
There are lots of disputes that must be litigated to be resolved. A (small) percentage of them will even need a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employeeâs theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.
However, when deciding whether to take your case all the way, remember Locigno v. 425 West Bagley.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
I have been blessed with employers that are sympathetic to the fact that my son was born with some life-long medical issues. Iâve never had an issue taking time for a doctorâs appointment, or an unexpected illness, or the three weeks he spent inpatient at the Cleveland Clinic five (very) long years ago.
Some employees arenât so lucky.
The EEOC reports that New Mexico Orthopaedics Associates will pay $165,000 to settle a lawsuit for associational disability discrimination. According to the agency, NMOA violated the ADA by firing a temporary employee, and failing to hire her for a full-time position, because of her relationship with her then 3-year-old disabled daughter.
The ADA prohibits three different types of associational discrimination.
Expense â discrimination based on the cost of insuring the associated disabled person under the employerâs health plan.
Disability by association â discrimination based on the employerâs fear that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have).
Distraction â discrimination based on the employeeâs inattentiveness at work because of the disability of the associated person.
EEOC v. New Mexico Orthopaedics Associates was based on the latter â distraction. According to EEOC Regional Attorney Mary Jo OâNeill:
The ADA specifically prohibits discrimination against mothers, fathers, caregivers, family members or others who are associated with persons with disabilities. Employers, especially those employers in medical fields, should be careful to provide employment opportunities based solely on the qualifications of the employee or applicant and not impermissible factors such as their association with an individual with a disability.
While this statement is very true, these cases are also very rare. Indeed, New Mexico Orthopaedics Associates was the first and only case ever filed by the EEOC in New Mexico alleging associational disability discrimination. Nevertheless, as this case illustrates, rare does not equal inexpensive. This employer learned an expensive and necessary lesson â caregivers have rights.
Iâll leave you with the words of the victim in the case, Melissa Yalch Valencia:
It should never have happened. A mother should never have to worry about losing her job because her child has a disability. I hope the lawsuit encourages moms and dads to stand up fearlessly when things like this happen. I also hope this lawsuit and this resolution encourages companies to train supervisors and employees to assure things like this donât happen in the workplace.
Employers, take heed and avoid discriminating against those with caregiving responsibilities for disabled family members. Itâs not just the legal thing to do; itâs also the right thing to do.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
After all, according to EEOC Chair Jenny R. Yang, âRetaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.â She adds, âThe examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.â
The lengthy guidance addresses retaliation under each of the statutes enforced by EEOC, and includes a discussion of the separate âinterferenceâ 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. Iâd like to focus on the documentâs coda, titled, âPromising Practices,â 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 employerâs 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 employerâs 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 employerâs 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 employerâs 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 Hymanâs blog at Workforce.com/PracticalEmployer.
We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nationsâ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, thatâs a thing).
For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employersâ anti-retaliation compliance a whole lot more difficult.
On Jan. 28 of this year, OSHA published a new Whistleblower Investigations Manual [pdf]. It is the guidebook OSHA investigators use to determine whether the agency should pursue or dismiss a retaliation case.
In that manual, OSHA both significantly decreased the showing that a complaining party must show to establish a whistleblower retaliation claim, while, at the same time, significantly increased the burden an employer must meet to demonstrate that it took the challenged adverse action for a legitimate business reason and escape liability.
The new, lower standard in whistleblower retaliation investigations is whether âOSHA has reasonable cause to believe a violation occurred.â Indeed, OSHA need only âfind reasonable cause that a complaint has meritâ to conclude that the employer violated the statute.
How low is this burden? Iâll let OSHA explain:
Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant.⌠Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHAâs investigation must reach an objective conclusion â after consideration of the relevant law and facts â that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.
In other words, OSHA need not find much in support of a complaint to conclude that it has reasonable cause to believe a violation occurred. Itâs about as low of an evidentiary standard as one could have.
Among other statutes, this lower standard of proof applies to The Energy Reorganization Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Surface Transportation Assistance Act, the Sarbanes Oxley Act of 2002, the Pipeline Safety Improvement Act of 2002, the Federal Railroad Safety Act, the National Transit Security System Act, the Consumer Product Safety Improvement Act of 2008, the Affordable Care Act, the Consumer Financial Protection Act of 2010, the Seamanâs Protection Act, the FDA Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act. Because of the wide range of industries these statutes impact, the odds are pretty good that this change impacts your business.
All is not lost for employers, however, because the manual gives employers an out (albeit a narrow one), even if OSHA finds reasonable cause. Again, Iâll let OSHA explain:
Under these statutes, even if there is reasonable cause to believe that protected activity was a contributing factor to the adverse action, the respondent may escape liability (and OSHA will issue non-merit findings) if there is clear and convincing evidence that the respondent would have taken the same action in the absence of the protected activity.
As low of a standard âreasonable causeâ is, thatâs how high a standard clear and convincing is. It is the highest civil liability standard there is.
What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it too. For all of these whistleblower statutes, OSHA will find a violation on the most minimal of showings, and yet require employers to jump the highest civil evidentiary hurdle possible to avoid the same.
And you know what? Thatâs just not fair.
Instead of making it impossible for an employer in all but the clearest of cases to avoid liability, it should strive for a level playing field. Instead, OSHA has tilted the playing field so strongly in a employeeâs favor that, if an employee files a whistleblower complaint under one of these âcontributing factorâ statutes, the employer best be prepared to litigate or pay up, because, in all the but the clearest of cases, OSHA has made it increasingly difficult, if not nearly impossible, for an employer to win.
I understand the importance of protecting whistleblowers and creating an environment in which employees feel comfortable coming forward with complaints, but there has to be a fairer means to accomplish this goal.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Our life experiences dictate our worldview. Such is the case with my opinion on the corporate layoff, as it has recently hit very close to home.
For the sake of anonymity, Iâll speak in hypotheticals.
An employee (Iâll call her âJaneâ) has worked for Company X for nearly a decade over two different tenures. By all accounts, Jane is a good employee and well-regarded by her peers. Company X recently agreed to acquire Company Y, which, unfortunately, has made Janeâs position redundant. As a result, Company X decides to eliminate Janeâs position. So far, so normal.
Here, however, is where the story takes a turn. Company X, for lack of better description, sandbags Jane. It made the decision to eliminate her position in March, yet doesnât communicate it to her until May, when it calls her into a conference room, tells her she has been laid off, and that itâs her last day of employment. Jane, shell-shocked, packs her office, takes her severance agreement and leaves. Jane later discovers that the negative and unwarranted performance review she received in April was part of a plan to support Company Xâs decision to include her in the May layoff.
Employers, we need to approach layoffs differently. Employees caught in the net of a corporate downsizing arenât necessarily bad employees. More often than not, they are victims of circumstance. Yet, too often we treat them like hardened criminals. I know of employers that perp-walk the recently laid off out of the building with armed escorts. What message does this send to the laid-off employee and to the employees left behind? That we donât think of you as a person, but as a cog in the machine, which we likely donât trust. This mindset needs to change.
What happened to treating employees with dignity, fairness and respect? Just because we are laying people off doesnât mean that we should stop exhibiting these values.
How can we treat employees more like human beings in handling layoffs? Let me offer four suggestions.
Overcommunicate with all of your employees. Be open and honest in why your employees are losing their jobs. Explain how the layoff will affect them, including the timing of the layoff and, for those losing their jobs, the severance benefits available. Keeping your employees informed will help squelch the rumor mill, which will undermine everything you are otherwise trying to accomplish.
Treat everyone equitably. As best as possible, use objective criteria to determine who stays and who goes. Employer X used negative subjective criteria in Janeâs performance review to justify including her in the layoff. Jane did not perceive those subjective criticisms as warranted, especially when she was an objectively high performer, and no one had ever before similarly criticized her for the reasons expressed in her negative review. The use of these subjective criteria left Jane with the (not unreasonable) belief that Company X purposely lowballed her review to justify her inclusion in the layoff. This gamesmanship not only reflects poorly on your organization, but it could also lead to pretextual challenges to your decision-making in later discrimination lawsuits.
Help people find jobs. Consider laid-off employees for other opportunities within your company. Provide written job references that will help them land on their feet. Offer outplacement that will assist them in writing effective rĂŠsumĂŠs and networking to find new employment. And, for goodness sake, if you (practically) promise a specific position to a laid-off worker, donât later give it to someone else. Thatâs just plain mean.
Donât toss people out onto the street. When someone loses a job, time is their best asset. Provide them as much as you can afford. If Company X knew in March that it would have to lay off Jane (an otherwise quality, longstanding employee with good character) in May, what was the harm in telling her in March? It would have provided her two extra months to find another job, and it wouldnât have left Jane with such a bad feeling about Company X. Companies claim concerns about confidential information excuse such (mis)behavior. If that is a legitimate concern for a specific employee, you might be justified in treating that employee differently. Otherwise, you have no reason to treat a laid-off employee like a criminal. Even the federal Worker Adjustment and Retraining Notification, or WARN, Act provides 60 daysâ notice before a mass layoff. You can simultaneously protect your information and treat people humanely.
The bottom line? Treat your employees like human beings throughout the layoff process, and everyone will be better as a result.
What happened to treating employees with dignity, fairness and respect? Just because we are laying people off doesnât mean that we should stop exhibiting these values.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
While this prohibition doesnât appear in the the actual text of the final rule, it does prominently appear in OSHAâs 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.
âWhat about workersâ compensation laws,â you say? âState law requires post-accident testing. What gives?â 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 workersâ 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 employerâs 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 workersâ 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. Thatâs 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 OSHAâs 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 Hymanâs blog at Workforce.com/PracticalEmployer.
Ohio has a specific statute that protects injured workers from retaliation after filing a workersâ 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 workersâ 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 employeeâs alleged injury must be an actual workplace injury.
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 Iâm relying on scare tactics, the case actually involved an employee fired after filing a false workersâ comp claim against his employer. The court tried to reason otherwise (âFiling a false claim or making misleading statements in order to secure workersâ 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.â).
Nevertheless, the facts of Onderko are what they are. The employer fired Onderko for his âdeceptiveâ attempt to obtain workersâ 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 courtâs justices was similarly troubled, writing the following in dissent:
A court should not construe the statute in a manner to encourage fraudulent claims for workersâ compensation benefits, and here, the Bureau of Workersâ 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 workersâ 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, thatâs no lie.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
