Passing out at the sight of blood could lead to a “recordable” OSHA event.


Under the Recordkeeping regulation of the Occupational Safety and Health Administration (OSHA), covered employers must prepare and maintain records of serious occupational injuries and illnesses. That regulation sets forth the injuries that must be recorded:

You must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

On November 4, 2015 the OSHA released an interpretation letter providing clarification – requested by one employer – as to whether an employee’s laceration and subsequent fainting at the sight of blood constituted a “recordable event” under the relevant regulation. The direction provided in that letter was that while the minor laceration alone, which required only a Band-Aid, was not reportable, the subsequent “loss of consciousness” made the entire event recordable.

Here’s what happened:

  • An employee scratched his index finger on a piece of equipment at work.
  • As he walked to an on-site first-aid station, he met a co-worker who offered to put a Band-Aid on the cut.
  • As the co-worker applied the Band-Aid, the injured employee looked at the cut, on which there was a small amount of blood.
  • The injured employee became light-headed and fainted at the sight of his own blood, losing consciousness for s brief period of time.
  • No further first-aid or medical treatment was necessary or rendered.

Here’s what OSHA said:

Normally, an injury or illness need not be recorded if it is resolved by the use of first aid. Therefore, a minor laceration resolved by applying a Band-Aid typically would not be recordable. However, OSHA regulations include a provision that a work-related injury or illness must be recorded if it results in a loss of consciousness, regardless of the length of time the employee remains unconscious.

In this scenario, the employee fainted as a result of the laceration and, according to the OSHA, “employers must record every work-related injury or illness if a worker becomes unconscious.” Therefore, the incident met the general recording criteria and must be recorded.

Here’s what it means:

According to this letter, if an individual loses consciousness as a result of a workplace injury (as opposed to a medical condition like epilepsy, asthma, etc), even if the loss of consciousness is simply a reaction to the injury, the entire event is recordable.

OSHA requirements are set by statute and attendant regulations. While interpretation letters do not create additional law or obligations, they often are used as support for administrative and court decisions and, therefore, should be viewed with serious attention.

Healthcare employers be advised: OSHA is standing behind its updated workplace violence prevention guidance.


The Bureau of Labor Statistics (BLS) reports that in 2013, over 23,000 significant workplace injuries occurred due to assaults on the job– and that over 70 percent of these assaults were in healthcare and social service settings.

According to the Occupational Safety and Health Administration (OSHA), health care and social service workers are almost four times as likely to be injured as a result of workplace-related violence than the average private sector worker. In April of this year, and based largely on that fact, OSHA updated its Guidance for Preventing Workplace Violence for Healthcare and Social Services Workers.

The revised guidelines, which updates OSHA’s guidance documents from 1996 and 2004, include research findings from various sources published in the past decade, and outline risk factors associated with working with patients or clients who behave violently.

The April 2015 publication also lists preventive measures that can be taken, and stresses the importance of developing and implementing a written workplace violence prevention program. Notably, OSHA spells out the elements of such a program to include express management commitment, worksite analysis, effective hazard prevention/control, health and safety training for both employees and managers, and accurate recordkeeping evaluation.

One particular decision issued since the issuance of the updated guidelines illustrates those points:

  • In June 2015, an Administrative Law Judge (ALJ) Judge affirmed OSHA’s earlier findings that Florida-based social service agency violated the General Duties Clause of the Occupational Safety and Health Act after a health care coordinator was stabbed to death by a mentally ill client who had a violent past.
  • OSHA investigators determined that the assailant had exhibited several high-risk factors and behaviors – including a history of violent criminal behavior – but that the company took no steps to protect its employees.
  • The OSHA’s decision was based – and then upheld on appeal – largely because the company had failed to conduct a hazard assessment of the health care coordinator’s position at any point.
  • Further, the company had not developed a written program to prevent workplace violence hazards, nor had it sufficiently trained its employees on prevention techniques.

That decision indicates that OSHA will follow the factors outlined in its updated guidance when assessing workplace-related violence reports involving healthcare workers. Hospitals, healthcare systems, and social service agencies committed to employee safety should use the guidance as a checklist of actions that should be taken to support that commitment, and to assure compliance with any review or audit by OSHA.


“SolwayfirthSpaceman” by Source. Licensed under Fair use via Wikipedia –

All rights reserved 2015

What’s not to “like” . . . .? Maybe this Second Circuit decision.

thumbs down cartoon guy

The 2d U.S. Circuit Court of Appeals has ruled that an employee’s “like” of a posting by a former employee, and a second employee’s comment on the original posting both were protected activity, and that firing those two employees violated the National Labor Relations Act (NLRA). Three D, LLC v. NLRB, No. 14-3284 (2d. Cir. Summary Order Oct. 21, 2015).

Facts of the case:

  • A former employee of Triple Play Sports Bar and Grille (“Triple Play”) posted on Facebook a negative comment related to the company’s handling of employee payroll taxes;
  • One then-current employee “liked” the posting;
  • A second then-current employee posted a comment regarding the company that included a mild obscenity;
  • Both current employees were fired for violation of the company’s social media policy;
  • The individuals filed an unfair labor practice charge against Triple Play.

Procedural history:

On August 26, 2014, the National Labor Relations Board (NLRB) found that the firings were unlawful and in violation of Section 8(a)(1) of the NLRA because they “interfer[ed] with, restrain[ed], or coerc[ed] employees in the exercise of the rights guaranteed” under the NLRA to engage in concerted activities for the purposes of mutual aid or protection. Triple Play appealed that decision to the Second Circuit.

On appeal, the company argued that the on-line activity was the equivalent of an employee yelling at a supervisor in front of customers – an action found in the past by the NLRB to have supported firing an employee who engaged in an angry and profane-laced tirade toward a supervisor, within earshot of customers.

While conceding that some customers may have viewed the Facebook comments, the Second Circuit disagreed that online activity was the equivalent of a public confrontation with a supervisor, and said that accepting that analysis could lead to “the undesirable result of chilling virtually all employee speech online.”

Electronic communications can be protected activity:

While both the NLRB and the Second Circuit refused to equate the online work-related communication with live interaction between an employee and a supervisor for this decision, the NLRB and federal courts regularly have held that electronic postings, as well as person-to-person communication, can constitute “protected concerted activity” entitled to Section 8 protection – even when, as here, the online postings are done outside of work. Further, the Second Circuit’s expressed concern over “chilling” online speech is a clear indication that the courts recognize the continuing expansion of “protected” status to online communications.

NLRB decisions and court opinions related to Section 8 protection for electronic postings continue to increase. Employers should insure that supervisors and managers are made aware of these decisions and should encourage those supervisors and managers to consult with human resources or legal counsel before taking disciplinary action in response to such communications.

The OFCCP’s “pocket card” may unintentionally light a litigation fuse.

Fuse #2

Government contractors and subcontractors have one more thing of which to be aware when it comes to accommodating disabled individuals. The Office of Federal Contract Compliance Programs (OFCCP), part of the U.S. Department of Labor, has created a new “Requesting a Reasonable Accommodation” pocket card.

According to the OFCCP’s official announcement, the card “helps applicants, employees and other interested parties understand the process for requesting a reasonable accommodation” under Section 503 of the Rehabilitation Act of 1973.

Section 503 prohibits discrimination against — and requires employers with federal contracts or subcontracts in excess of $10,000 to take affirmative action to hire, retain, and promote — qualified individuals with disabilities.

Now, individuals who apply to or are employed by federal contractors can use the pocket card to find the OFCCP’s answers to these questions:

  • What is a reasonable accommodation?
  • How do I request a reasonable accommodation?
  • What do I need to tell my employer?
  • What happens after the request is made?

How this card assists disabled individuals:

First, the existence of the card draws attention to the fact that reasonable accommodations are available for applicants, as well as employees, a fact of which individuals may not otherwise be aware.

Second, it makes the important point that a “reasonable accommodation” for one person may differ from another’s, based on the nature of the disability or the job.

Third, it provides contact information (phone, website, and TTY) for individuals to be in touch directly with the OFCCP.

How this card leaves questions unanswered:

First, the “answers” provided are very simplistic and somewhat misleading if used as the single source of information on the issue. For example, the response to “How do I request a reasonable accommodation?” begins, “Typically, just ask.” While the paragraph goes on to say that “some contractors do have a specific process, so ask your employer,” that language makes it sound as if a simple request always will result in an accommodation.

Second, the card refers simply to “disability” without further information or definition, and provides examples of accommodations relevant for physical disabilities (improving accessibility, modifying equipment, providing readers/interpreters), leaving the unfortunate impression that psychological disabilities are not included.

Third, the card does not address the “interactive process” requirement, and may lead individuals to believe that the onus for formulating an appropriate accommodation is solely on the employer.

How this card may create confusion for both individuals and employers:

While the OFCCP’s announcement labels the card as part of its “worker outreach and education efforts,” the unfortunate result of the card may be an uptick in confusion around the accommodation process.

When individuals hold information directly from a governmental agency in their hands during discussions with an employer, those individuals tend to believe that such information includes the final word on the issue. This could lead to less flexibility in the accommodation requesting process, and less willingness to engage in an interactive process.

Further, the OFCCP’s contact information is accompanied by the clear and unmistakable direction for when such contact should occur: “If you believe that you have experienced discrimination, contact OFCCP.” Such a directive allows no opportunity for questions related to the process, and may create more litigation than it avoids.

While the results of this card remain to be seen, federal contractors should recognize that the accessibility and simplistic nature of this card makes it a go-to for individuals. Companies therefore should be prepared to discuss the issues with applicants and employees, and to answer questions raised by the pocket card.

Watch Out C-Suite: the DOJ Has Laid Out a Plan to Increase Actions Against Individuals in Corporate Wrongdoing Cases.

In recent years, there has been a continuing emphasis by the Department of Justice (DOJ) on investigations of corporate wrongdoing, including an increase in the investigation and finding of individual liability for that wrongdoing. This emphasis recently was documented in something now being referred to as the “Yates Memorandum.”

According to Sally Quillian Yates, Deputy Attorney General for the DOJ, “fighting corporate fraud and other misconduct” is one of the DOJ’s top priorities. In a Memorandum dated September 9, 2015, and issued to Assistant Attorney Generals in almost every division of the DOJ and to all 94 of the current U.S. Attorneys for the DOJ, Yates started by explaining how bringing accountability to individuals within corporations is one of the most effective ways to combat corporate misconduct and to promote “the public’s confidence in our justice system.”

The Memorandum spells out six keys mechanisms to be followed by investigators to strengthen the DOJ’s pursuit of potentially culpable individuals. Those six steps are, in summary:

• First, to become eligible for any “cooperation credit” — a mitigating factor of which many companies take advantage when working with the DOJ to come to a prompt and effective resolution of an investigation – companies must “completely disclose to the Department all relevant facts about individual misconduct,” which includes identifying all individuals “involved in or responsible for the misconduct at issue” regardless of position, status, or seniority.

The troubling language in that directive is the sentence that specifies that if a company seeking cooperation credit “declines to learn of such facts,” all credit will be withheld. Yates does not identify who at the DOJ will determine how or whether a company has “declined” to learn relevant facts. She simply states that no credit will be given if an investigator subjectively believes that the company is failing and/or “declining” to provide information.

• Second, Yates stresses that all investigations, both criminal and civil, should begin with a focus on individual wrongdoing. She specifically states that such focus “can increase the likelihood that individuals with knowledge of the corporate misconduct will cooperate with the investigation and provide information against individuals higher up the corporate hierarchy.”

While Yates expresses her belief that such focus will lead to charges against “culpable individuals,” she does not take into account the fact that providing information “against individuals higher up the corporate hierarchy” may, in essence be a mechanism for culpable individuals to offer “bigger fish” to investigators, extricating themselves from fault but complicating the search for truth by including non-culpable persons, or by giving what the investigators “want,” and not the less important but truthful information that the witnesses actually may have.

• Third, Yates asks for “early and regular communication” between civil attorneys and criminal prosecutors handling corporate investigations. According to Yates, such early coordination should occur, “even if it is not certain that a civil or criminal disposition will be the end result” of the investigation.

In other words, more of these investigations will include discussion among DOJ attorneys of potential individual liability to insure that all appropriate charges are brought against those individuals, whether or not future charges are an initial certainty.

Further, while this provision of the Memorandum ostensibly is geared toward a coordination of effort between civil and criminal investigators, it does not address limitations placed by federal rules on sharing, for example, grand jury materials or other privileged or protected materials.

• Fourth, DOJ attorneys are instructed “not to agree to a corporate resolution that includes an agreement to dismiss charges against, or provide immunity for, individual officers or employees.” Should the attorney believe that extraordinary circumstances exist that call for such dismissal or immunity, none will be given without written approval by the relevant Assistant Attorney General or U.S. Attorney.

This increase in bureaucratic involvement could add a layer of complexity to an already procedurally complicated investigatory process.

• Fifth, corporate investigations now will not be resolved without a “clear plan” to resolve associated cases against any related individual. If a decision is made at the end of an investigation not to bring civil or criminal claims against individuals involved , the reasons for that decision mast be documented and approved by the U.S. Attorney or Assistant Attorney General whose office handled the investigation.

Whether or not this provision alone results in more charges ultimately filed against individuals remains to be seen, but seems likely.

• Last, Yates states that the pursuit of civil actions against individuals should not be based solely on the individuals’ ability to satisfy a judgment in the case. According to Yates, “[a]lthough in the short term certain cases against individuals may not provide as robust a monetary return on the department’s investment, pursuing individual actions in civil corporate matters will result in significant long-term deterrence.”

Awkwardly, this provision makes it sound as if the DOJ’s previous focus has been on the “robust monetary return on the department’s investment” but now should be broadened to reinforce the longer-term goal of deterrence.

While the Yates memorandum does not make dramatic changes to the way in which investigations into corporate wrongdoing currently are handled by the DOJ, it ups the ante for investigators pursuing individuals — especially high-ranking corporate officers — in those actions.

Unfortunately, the memo clearly leaves opportunities for subjective decisions regarding how far the DOJ attorneys can go to resolve cases against individuals charged with corporate wrongdoing

In-house and outside counsel who represent corporations and their C-Suite managers should fully leverage their resources to obtain the available universe of information prior to the DOJ’s involvement in any investigation of wrongdoing in order to fully understand the relevant facts, as the potential consequences of not being able to identify culpable individuals could be dire – at least according to the Yates Memorandum.

Un-Safe Harbor Ahead: the Electronic Transfer of Personal Data has Hit Stormy Weather.

ships in storm

More than two years after the Edward Snowden leaks, the effects still linger. Most recently, those effects were felt on October 6, 2015, in a decision issued by the European Court of Justice (ECJ) which invalidated the U.S.-EU Safe Harbor Framework (“Safe Harbor”) – a decision which has companies that regularly transfer personal data from the European Union (EU) to the U.S. struggling to understand available alternatives. Schrems v. Data Protection Commissioner, Case C-362/14 (October 6, 2015).

Up until last week’s decision, the Safe Harbor provided a method for U.S. companies to transfer personal data outside the EU in a way that is consistent with the EU Data Protection Directive, and the consolidated Acts of 1988 and 2003. To join the Safe Harbor, a U.S. company had to “self-certify” to the Department of Commerce that it complied with EU standards. Most U.S. companies doing business in the EU were taking advantage of the Safe Harbor, and self-certifying their compliance.

The Schrems case involved a legal challenge brought by Austrian national Max Schrems. Schrems has been a Facebook subscriber since 2008 through Facebook Ireland. Some or all of the data of Facebook Ireland subscribers residing in the European Union is transferred to Facebook USA’s servers (under the Safe Harbor framework) in the United States, where it is kept.

In June of 2013, Schrems, a then 24 year old law student in Vienna, filed a complaint with the Irish Data Privacy Commission (“Commissioner”), where Facebook has its EU headquarters. He crowdsourced the funding for his case online and petitioned Facebook to get his data – through a process that is outlined in detail on the crowdsourcing website.

The history of Schrems’ lawsuit:

Schrems claimed, in essence, that the law and practices of the U.S. offer no real protection of personal data against government surveillance. His allegation was based largely on the revelations made by Edward Snowden earlier in 2013 concerning the activities of U.S. intelligence services, in particular those of the National Security Agency (“NSA”).

According to the Snowden revelations, the NSA established a program called “PRISM” under which it obtained – as described by the ECJ – the “unrestricted access to mass data stored on servers in the United States owned or controlled by a range of companies active in the internet and technology field . . . .”

Initially, the Commissioner rejected Schrems’ claim as frivolous. Schrems then brought proceedings before the Irish High Court for judicial review of the Commissioner’s decision rejecting his complaint. In its review, the High Court concluded – based on the Snowden scenario and information – that once personal data is transferred to the United States, the NSA and other U.S. security agencies are able to “access it in the course of a mass and indiscriminate surveillance and interception of such data.”

On September 24, 2015, the ECJ Advocate General, Yves Bot, issued a non-binding opinion recommending that the ECJ, through the Schrems case, invalidate the Safe Harbor framework in light of Snowden’s revelations.

While the ECJ was not bound to follow the opinion of the Advocate General, it frequently does so, and did so in this case. The ECJ held that the U.S. failed to show that it collects personal data in a way that is “strictly necessary and proportionate to the protection of national security.” It also specifically mentioned that under the current system, U.S. and EU citizens have “no administrative or judicial means of redress” if their data is used for reasons not originally intended. The court determined that the reasonable solution was to invalidate the Safe Harbor mechanism.

What to do now:

This decision will have serious ramifications for the more than 4,500 companies that currently use the Safe Harbor provisions, as those companies now will have to find other legal means to transfer personal data from the EU to the U.S. At the moment, there seems to be no clear path to that means.

According to a article by Vivienne Walt posted on October 6, 2015, “U.S. and EU officials have been negotiating new Safe Harbor rules since 2013, and in recent weeks both sides have said they were close to agreement. The new rules would likely include assurances – never before made – that governments will not access data of regular citizens.”

In an October 9 article in Bloomberg BNA (“EU Privacy Chiefs to Mull U.S. Data Transfer Future”), author David Alpin says that the “Article 29 Working Party, an advisory group to the European Commission that is made up of representatives from the data protection authorities of the 28 EU member states, is slated to meet in Brussels Oct. 15 to consider offering official guidance to companies reeling from the sudden demise of the [Safe Harbor] program.”

What is obvious at this point is that companies transferring personal data from the EU to the U.S. can no longer rely on the Safe Harbor principles to provide adequate protections for the electronic transfer of that data. Transfer of such data under those circumstances may give rise to complaints by employees and/or customers, investigations by individual data protection authorities, and possible enforcement actions and penalties.

What are the current alternatives? Mechanisms could include consistently enforced corporate rules that permit intra-company transfers, model contract clauses adopted by the European Commission, and consents of data subjects. These alternate methods, however, are costly, time consuming, and often difficult to achieve.

U.S. companies that transfer personal data from the EU to the U.S. – or use U.S.-based cloud services to store or transfer such data – should immediately review contracts related to that data to assure that the agreements conform to existing EU requirements or otherwise are approved by regulators. Then, stay tuned for more issuances on the subject, which are certain to be coming soon.

8th Circuit denies enforcement of NLRB decision regarding throat-slitting gesture.

Throat cut gesture - old movie

Over the past year, employers have bemoaned the fact that the National Labor Relations Board (NLRB) has decided: that two nursing home employees should be reinstated despite performance deficiencies that included patient safety issues; that an employee’s online and obscenity-laced rant was “protected activity” under the National Labor Relations Act (NLRA); and that an employee’s discussion of a help-wanted ad with a co-worker was “concerted activity” under the NLRA.

A recent 8th U.S. Circuit Court of Appeals may change the prevalent downcast mood of employers. There, the Court refused to enforce an NLRB decision in which the Board found a company to have violated the NLRA by terminating a union employee who made what the Court called a “cut throat” gesture. Nichols Aluminum, LLC v. NLRB, No. 14-3202, August 13, 2015.


  • Nichols Aluminum’s unionized casting plant in Davenport, Iowa, employed approximately 165 employees.
  • On January 20, 2012, the International Brotherhood of Teamsters Union, Local No. 371 (the union) called for a strike;
  • Most employees participated in the strike, and Nichols hired replacement workers to fill some positions;
  • Bruce Bandy, a 34-year Nichols employee, “worked the picket line once a week” but took no strategic or leadership role in the strike.

The union ended the strike in April, and striking workers, including Bandy, were recalled to work. Bandy took a pledge – required by Nichols from returning workers – that he would not strike again over the same dispute.

After returning to work, Bandy was involved in a confrontation with an employee with whom he had an admittedly difficult working relationship. During that confrontation, and according to the other employee, Bandy “drew his thumb across his throat,” which the employee understood as meaning “I’m going to cut your throat.” Bandy ultimately was fired for that gesture, which violated the company’s “zero tolerance policy” against violence or threats.

Procedural history:

The union filed an unfair labor practices charge with the Board, challenging Bandy’s termination. An Administrative Law Judge (ALJ) concluded that Nichols did not violate the NLRA, and that the “cut throat” action could have been reasonably construed as a serious threat.

However, upon review by a three-member panel of the NLRB, the ALJ’s decision was reversed and the panel found that Bandy’s firing violated the NLRA, based primarily on the Company’s allegedly inconsistent response to other violations of its zero tolerance policy (one example cited was that the Company rehired an individual after firing him for cleaning and loading a gun in the workplace).

On appeal, the Eighth Circuit found a lack of connection between Bandy’s discharge and his union-related activity. Because Bandy did not “distinguish himself from the other strikers” who were not terminated after discipline, the NLRB could not carry its burden to show the requisite causal connection between Bandy’s strike activity and his firing and, therefore, could not prove that but-for Bandy’s union activity or membership, he would not have bene discharged.


This opinion should not be read as a seismic shift in this area of the law. The ultimate decision here was made by a federal court and not the NLRB. Unlike the courts, the NLRB is likely to continue the path it regularly has taken on these cases, evidenced by its decisions earlier this year and last. Here are the things that employers can do to help to avoid liability under Board review of disciplinary actions:

  • Assure consistent application of disciplinary processes;
  • Objectively and fully document termination reasons, including the policy or procedure violated; and
  • Carefully review planned discipline to assure that union activity is not a factor in any decision to impose an adverse employment action.



(Photo is of Gino Corrado in 1945 Columbia Pictures classic comedy short “Micro-Phonies.”)

Non-disabled individual may bring claim of retaliation under the ADA.

Does an individual have to be disabled in order to bring a lawsuit under the retaliation provision of the Americans with Disabilities Act (ADA)? The 6th U.S. Circuit Court of Appeals says No.

In a recent unpublished opinion, that court reversed a lower court’s dismissal of an ADA retaliation claim, pointing out that an individual who is not adjudged to be a “qualified individual with a disability” still may be able to pursue a retaliation claim under that law, if that person took an action that is considered to be “protected” under the ADA and then suffered an adverse employment action. Hurtt v. Int’l Services, Inc., 6th Cir., No. 14-1824, September 14, 2015 (unpubl.).

Under the ADA, it is unlawful to discriminate against an individual because of that individual’s disability. The Act also includes a provision that prohibits retaliation against an individual. That provision states that:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

In 2011, Robert Hurtt was recruited to return to work at International Services, Inc. (ISI) as a senior business analyst after leaving the company in 2010. His return included a $70,000 yearly “draw,” and a 12% commission on sales. After returning to the company, Hurtt was required to travel extensively with little time for sleep, and began to have health problems and to experience anxiety. Although Hurtt repeatedly asked for a change in his schedule because of those issues, ISI did not comply with the request.

On September 4, 2012, Hurtt submitted an FMLA request when his anxiety and depression flared up. The following day, ISI terminated Hurtt’s draw and placed Hurtt on a “commission-only” pay scale. Although Hurtt reiterated his request for reinstatement of his draw, he did not return to work after September 4, and sent a letter dated September 18 saying that he would not be returning to ISI. He subsequently filed a lawsuit alleging disability discrimination and retaliation, as well as FMLA interference and retaliation.

ISI filed a motion for summary judgment, arguing in part that Hurtt had not shown that ISI was aware of his disability, and had not shown a “protected action” on which Hurtt could base his retaliation claim. The lower court granted ISI’s motion and dismissed the claims. On appeal, the Sixth Circuit reversed and remanded that decision, finding factual issues that would have to be decided by a jury.

Two of those factual issues are critical points for employers who are dealing with requests for accommodation from employees with medical or psychological impairments:

  • An individual who is adjudged not to be a “qualified individual with a disability” under the ADA still may pursue a retaliation claim under the ADA; and
  • Requests for accommodation are protected acts, sufficient to support a claim of retaliation.

While neither of these points is completely intuitive, there is case law in multiple jurisdictions to support them. Therefore, employers who train supervisors and managers to recognize and respond to requests from employees for accommodation should add these two points to that training to avoid the risk of an adverse decision from a judge or jury.

Attempted self-help via internet leads to employer liability under the FLSA.

plumber w-wrench

Ongoing activity by the Department of Labor (DOL) regarding overtime regulations, coupled with recent federal court decisions regarding compliance with the Fair Labor Standards Act (FLSA), have raised the level of attention to wage payment issues — and have increased the risk of employer liability — to new heights. A recent decision by the 5th U.S. Circuit Court of Appeals provides a clear illustration of the type of action that triggers that risk. Miles v. HSC-Hopson Services Company, Incorporated, 5th Cir., No. 14-11237 (September 8, 2015).

Donald Miles, a plumber, brought an action under the FLSA against his employer, HSC-Hopson Services Company (“HSC”). In that lawsuit, Miles claimed that he was not paid for all of the time that he spent at work, and that overtime wages were owed to him. He premised that claim on the facts that:

  • even though the workday began at 8:00 a.m., he was directed to appear at work at 7:30 a.m. to load his truck and receive his first assignment of the day, but was not paid for that 30 minute block of time; and
  • he was not paid for time worked after finishing the last assignment of the day, during which he was required to return and unload the same truck and lock everything up.

The FLSA requires employers to pay to non-exempt employees (which typically includes plumbers) at least one and one-half times the employees’ regular hourly wage for every hour worked in excess of 40 in a week. The Act further requires employers to keep track of and document fully the work-time spent by employees.

Miles’ case was tried to a jury and included testimony from HSC’s owner, Hopson, that not only did HSC not pay for the before-or-after work assignments time, but that if Hopson disagreed with a time indicated on a timecard, he would direct his office manager to change the card, or he would change it himself.

Importantly, Hopson testified that while he did not seek the advice of counsel or contact the DOL for direction or advice on his actions, he visited an “e-law” website to assure himself that those actions were compliant with the FLSA.

A jury reacted by finding in Miles’ favor, and awarding to him actual damages/lost wages in the amount of $16,132.50, with an equal amount in liquidated damages for “willful” violation of the FLSA.

On appeal, Hopson argued that the imposition of liquidated damages was “not fair,” because rather than willfully violating the FLSA, he had acted in “good faith reliance” on the DOL’s regulations regarding overtime payment, based upon his reading of the “e-law” site.

The Fifth Circuit disagreed, citing the language of the FLSA that a violation is willful “if the employer either knew or showed reckless disregard for . . . whether its conduct was prohibited by the statute.” The combination of Hopson’s reliance on an “e-law” site, rather than on legal advice geared to his specific situation, coupled with his arbitrary reduction of and non-payment for work times, led to this adverse decision.

This case adds to the already lengthy list of reasons that employers should work closely with human resource personnel and legal advisors to assure compliance with and awareness of laws related to wage payments to employees, especially in light of the pending revision to the regulations related to the calculation of overtime payments.

New Federal Minimum Wage and Overtime Requirements for Home Health Care Workers Reinstated by Appellate Court

This article was written by Carolyn E. Sieve (Of Counsel in the Orange County office of Ogletree Deakins) and Robert R. Roginson (Shareholder in the Los Angeles office of Ogletree Deakins).

On August 21, 2015, the United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers.

The federal appeals court decision overturns a lower court opinion from January of this year that struck down the new regulation just before it was scheduled to go into effect. However, the appeals court decision does not mean that the minimum wage and overtime requirements will go into effect immediately. The case will likely now return to the district court with instructions by the court of appeals to issue a decision upholding the regulations unless there is further review of the case by either the full panel of the D.C. Circuit or the Supreme Court of the United States.


The case arises out of a challenge brought by several home health care associations to the Department of Labor (DOL) regulation. Those associations argued that the regulation was inconsistent with the actual language of the Fair Labor Standards Act (FLSA) and the congressional intent in creating the minimum wage and overtime exemptions. The lower court judge agreed with the associations and invalidated the new regulation, concluding that the regulation contravened the FLSA exemptions.

In its 24-page opinion reversing the lower court, the D.C. Circuit ruled that the DOL’s regulation was grounded in a reasonable interpretation of the federal FLSA. The appellate court relied largely on a 2007 decision issued by the U.S. Supreme Court in determining that the DOL was vested under federal law with the necessary discretion to limit the scope of the minimum wage and overtime exemption that previously had applied to home health care workers.

The court cited “a marked transformation” in the provision of residential care since the minimum wage and overtime exemption was first adopted in 1974, and noted that previously, the provision of professional care primarily took place outside the home in institutions and nursing homes and that the individuals who provided the services in the home were principally “elder sitters” and not the type of professional caregivers employed by third-party agencies in present times.

The appellate court found that the DOL’s regulation to bring home health care workers employed by third-party employers within the FLSA’s minimum wage and overtime protections was reasonable and consistent with congressional intent.

The federal appeals court also struck down the home health care associations’ challenge to the portion of the new regulation defining the scope of the “companionship services” encompassed by the companionship-services exemption under the FLSA. On this issue, the court ruled that the associations do not have standing to maintain the challenge in federal court.

The challenge addressed yet another part of the DOL’s new regulation that narrowed the scope of the remaining minimum wage and overtime exemption. This regulation eliminated the exemption for those individual caregivers who perform general household work and for those individual caregivers who spend more than a limited amount of time devoted to assisting with activities of daily living. The appeals court concluded that since the third-party employers could no longer take advantage of the companionship services exemption, they no longer could claim they were injured by the narrowing of that exemption.

Key Takeaways

The August 21st decision paves the way for the DOL regulation that extends the federal minimum wage and overtime requirements to home health care workers employed by third-party employers to go into effect in its entirety. Third-party employers of home health care workers should take appropriate steps now, if they have not done so already, to ensure they comply with all applicable minimum wage and overtime and record-keeping requirements for their home health care workers if and when it is determined that the new regulation will take effect.

Note that some states already require third-party employers to pay overtime and minimum wage to home health care workers and personal attendants, but those state laws may include requirements that differ from the FLSA’s overtime requirements. For example, California’s Domestic Worker Bill of Rights—Assembly Bill 241, which was signed by the governor in 2013—requires that overtime compensation be paid to personal attendants for hours worked that exceed 9 hours per day or 45 hours per week.

The FLSA, on the other hand, requires overtime payments for hours worked that exceed 8 hours per day or 40 hours per week. In these cases, employers must be careful to ensure that they are complying with both state and federal law.