Lawyers: Here are five things you can do right now to increase mindfulness.

Sesame Street 5

(Brought to you by the Number 5, and Sesame Street’s Count von Count.)

 

Here’s an incident to which almost every lawyer can relate:

Your out-of-town trial (or client meeting, or high-profile presentation) starts in three days. You’re packing files, luggage, and one last cup of coffee for the trip to the airport. You’re running a little late for the flight (because you had to make one last call – done on speaker-phone, of course, and you were packing your suitcase as you talked), so you want to get everything to the car in one trip. Suitcase in one hand, briefcase strap over your shoulder, and coffee and cell phone in the other hand, you get to your car, only to remember that your keys are in your jacket pocket. Rather than put anything down, you try to snag the keys with a couple of fingers on the hand holding the cell phone and coffee. I don’t have to tell you what happens next – but it involves keys on ground, coffee in your shoe, and a wet cell phone.

This scenario may seem overly predictable and simplistic. But ask yourself how often things like this happen – and how many extra minutes it takes to clean up the unintended mess. Mindfulness can help to avoid this type of dilemma.

If you were asked to list the top five things that you could do to increase your level of success in 2016, that list might include things like: working faster/more efficiently; attending industry-related seminars and “working the crowd” to meet potential clients; expanding your network by speaking, writing, and training; delegating more work to associates; and joining management committee to raise your profile within the firm. Very few lawyers would add to that list things like “take a breath” or “slowly count to ten” or any other technique regularly associated with mindfulness training.

The quantifiable effects of mindfulness:

Recent studies of the effect of mindfulness on business-related success have shown important – and unexpected – results. According to the Harvard Business Review, one company’s study showed that on average, stress levels of employees participating in a mindfulness program dropped by 28%. If that doesn’t impress you, that same study showed that participants gained an average of 62 minutes of productivity each week. (Do the math for the yearly gain, using your own billable rate.) Studies show that mindfulness actually changes our brains.

What is mindfulness? In essence, it consists of actively observing the world around you, one thing at a time, and being aware of that thing in its full context. The “thing” could be the car in front of you on the road, the face of your client in reaction to your explanation of legal strategy, or just the way your feet feel as you walk down the courthouse steps. Mindfulness keeps you in the present moment and allows you to fully feel that moment without worrying the about the next one.

Don’t confuse “motion” with “action”:

What isn’t mindfulness? Reading e-mails while you walk to your car on a sunny day; calling your stockbroker from your car while you head to the courthouse for a hearing; editing a brief while “listening” to a webinar; there are hundreds of examples that we, as lawyers, do every single day.

Most of us confuse “motion” with “action” – but the two are distinctively different, and it’s mindfulness that is at the core of that difference. Mindfulness keeps us in the present moment, puts things in perspective in a practical way, and allows us to save the energy of our thoughts for the important things when they happen. It allows us to navigate communication more effectively (which of us hasn’t half-listened to a spouse, child, or co-worker, and then felt remorseful afterward?), and to manage our own behavior by being more aware of what we say and how we act.

Five things to do now:

Start with these five things to begin your own mindfulness training:

  1. Stand still. No, really – just stand still. Stop where you are and look around you for ten seconds. Don’t speak; don’t text; just stand. You don’t have to accomplish anything in that ten seconds. The point is simply to be still.
  2. Take a deep breath. When is the last time you actually filled your lungs with air? Breathe in through your nose, fully filling your lungs from the bottom to the top (it’s harder than it sounds). Hold that breathe for a second or two, and then breathe it all out through your mouth. If you feel really adventurous, raise your arms while you breathe in and lower them as you breathe out.
  3. Stop answering the phone after the first ring. Lawyers are trained to be responsive. But grabbing the phone as soon as it rings means that you’re stopping something else in mid-track . . . being less mindful of that ongoing task than of the phone call. When the phone rings, use the first ring to focus on what you’re leaving in order to take the call. If you decide that the call is more important than the task, stop mindfully and answer the call on the second (or even third!) ring, so that when you go back to that task, you won’t have to re-do anything to catch up to your pre-call status.
  4. Eat real food. This one is a little less direct than the others. In essence, eating “real” food – as opposed to fast food made by others who have no connection to either you or the food – allows you to be more mindful of what you’re putting into your body, and how the food really tastes. It allows you to be fully aware of the time that you’re spending and of the purpose of eating, which is to provide energy to get through your day in a positive and productive way. Start packing your lunch – it doesn’t have to be fancy, but it will help you to give some mindful thought to what you plan to eat.
  5. Learn something new every day. We’re lawyers – of course we learn something new every day, whether it’s statutes, cases, or court rulings. I’m not talking about that. How about learning the capital of Australia (Canberra), the name of the dance move that would most embarrass your teen if you did it in public (the Dab), or the Prime Minister of Canada (Trudeau – Not that one. His son, Justin). Being mindful of things other than those familiar to you can help to increase your creativity, which is something that every lawyer should be thinking about.

In 2011, New York City instituted an unusual way of increasing mindfulness of its drivers, in an attempt to make them more aware of the dangers of driving without attention. Traffic warning street signs written as haiku/senryu appeared on poles around the five boroughs, posted by the New York City Department of Transportation. The poems and accompanying artwork were created by artist John Morse. My favorite – and one that I’ve saved since then to remind me to be mindful of my actions – is:

Imagine a world

Where your every move matters.

Welcome to that world.

 

Practical effect of DOL’s recent expansion of its “joint employer” analysis remains to be seen.

Saif underclingin in a crack 2010

(Photo of Saif underclinging a fissured rock wall in Keene Valley, NY in 2010.)

In a marked deviation from current regulatory standards and judicially accepted parameters of “joint employment,” the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued – through Administrator David Weil Administrator’s Interpretation (AI) No. 2016-1, setting forth its “guidance” for determining employees’ rights and employers’ obligations under the Fair Labor Standards Act. (The AI also addresses joint employment under the Migrant and Seasonal Agricultural Worker Protection Act. The MSPA and the FLSA differ substantively, but share the same definition of “employ.”)

In the AI, Administrator Weil brings strong overtones of his book, “The Fissured Workplace,” to his job as Administrator of the WHD. Weil’s 2014 book attributes “declining wages, eroding benefits, inadequate health and safety conditions, and ever-widening income inequality” to outsourcing of workers by companies. He calls that growing inequality “fissuring” – a separation between employers and their workforce.

The January 20, 2016 AI is consistent with the goal Weil proposes in his book, which is to modernize regulatory policies and laws so that employers can meet their obligations to workers while ostensibly allowing companies to keep the beneficial aspects of the outsourcing and down-sourcing.

The AI begins with the basic premise that an employee can have two or more employers for the work he or she is performing. Under joint employment, an employee’s hours worked for all of his/her joint employers during the workweek are aggregated and considered as one employment for compliance with the Fair Labor Standards Act (FLSA) – including to calculate whether overtime pay is due, and whether the employers are jointly and severally liable under that Act.

Overview of AI 2016-1:

The AI addresses both “horizontal” and “vertical” joint employment.

  • Horizontal employment exists where an individual has employment relationships with two or more employers, and those employers are sufficiently associated or related that they all are deemed to employ that person; horizontal employment focusses on the relationship between the employing entities.
  • Vertical employment exists where an individual has an employment relationship with one employer – staffing agency, subcontractor, etc. – and the facts show that he or she is economically dependent on, and thus employed by, another entity involved in the work.

The AI addresses both, beginning with the statement that unlike the common law control test (which analyzes whether a worker is an employee based on the subject employer’s “control” over the worker), a joint employer relationship should be analyzed under a broader “economic realities” view of the relationship under the FLSA.

Further, Administrator Weil points out in a footnote that “[A]spects of both horizontal and vertical joint employment may be present in a single joint employment relationship. For example, both forms of joint employment could potentially exist where two warehouses share employees and use a staffing agency to provide them with labor.”

The AI goes into detail on the relationships that could constitute joint employment under the economic realities perspective – both from a horizontal and vertical standpoint – providing examples, and lists of factors to be included in any analysis of such relationship.

The joint relationship is painted with an extremely broad brush in this AI, expanding the joint employment concept in a way that obviates many benefits of outsourcing, staffing through agencies, and sub-contracting specialty jobs. Further, while the AI has broad applicability, its language specifically targets certain industries, including home health care, construction, janitorial, warehousing/logistics, and hospitality entities.

While the DOL has clarified that the AI was not meant to target franchised businesses, its Q&A on the guidance includes this statement: “Ultimately, of course, whether a particular franchisee and franchisor jointly employ a worker is based on the facts of each situation and must be made on a case-by-case basis applying the analyses discussed in the AI.” That language clearly leaves the door open for the WHD to subject franchise arrangement to the same level of scrutiny that the guidance seems to indicate will be given to other business entities.

Practical Effect of the AI:

The language of the AI is directed primarily at employers, but its practical effect is likely to begin with employees who are taking or considering legal action under the FLSA. Although the AI is couched as “guidance,” it is sure to be cited to courts in the near future as persuasive authority. The level of judicial deference to the AI, and the extent on which it will be relied in court opinions then will determine its ultimate effect on any extension of the “joint employer” analysis.

In addition, the DOL investigators on cases involving joint employment issues are sure to use the AI as leverage when attempted to move cases toward resolution outside of trial.

In short, and in order to avoid unintended liability under the FLSA, employers should become familiar with the content of the AI, its possible ramifications, and the specifics of the proposed parameters of the analysis that will be used by the WHD in future investigations.

Is binding arbitration an effective alternative to litigation for employment disputes? One PA federal court thinks it’s not.

soccer flick

In a case that could act as a jumping off point for discussion regarding the pros and cons of mandatory arbitration in employment cases, the U.S. District Court for the Eastern District of Pennsylvania ultimately upheld an arbitrator’s decision that a soccer coach’s firing did not violate his employment agreement. Nowak v. Penna. Professional Soccer, et al., EDPA, No. 12-416 (January 11, 2016). In its published opinion, the court provided its own view of binding arbitration as a problem resolution mechanism – and the language is not supportive of that form of ADR.

Basic background of the case:

Piotr Nowak, a soccer coach employed via a contract with the Philadelphia Union professional soccer team (“the team”), was fired for behavior deemed by the team to be violative of his contract.

Nowak filed a lawsuit, to which the team responded by asking the court to move the case to mandatory arbitration, spelled out in a provision of the employment agreement. The case was sent to arbitration, and the parties agreed upon an arbitrator who ultimately found against Nowak and determined that his firing was appropriate under the terms of his contract. The arbitrator entered a Final Award, also directing Nowak pay the defendants’ attorneys’ fees and costs.

Nowak appealed, asking the court to vacate the award; the team asked the court to uphold it.

A court’s standard of review of an arbitrator’s award:

A federal court reviewing the decision of an arbitrator selected by the parties gives extreme deference to that arbitrator’s findings. Parties to arbitration should recognize – before participating – that federal courts do not second-guess an arbitrator’s award, but instead presume the reasoned award is enforceable. A court cannot vacate an arbitration award simply because it disagrees with the arbitrator’s findings on the merits or because it believes that the arbitrator made a factual or legal error.

The court began its review by citing the Federal Arbitration Act’s list of the narrow circumstances under which a court may vacate an arbitration award. Under that Act, awards may be vacated where: “(1) procured by corruption, fraud, or undue means; (2) the arbitrator demonstrated evident partiality or corruption; (3) the arbitrator was guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or (4) the arbitrator exceeded her powers or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made.”

Because none of those circumstances was found to apply in Nowak’s case, the court upheld the arbitrator’s decision.

The court’s comments regarding binding arbitration:

In its “Conclusion” however, the court did not mask its concern about the use of binding arbitration as a problem-solving mechanism in employment issues:

To our continuing surprise, intelligent and worldly parties often sign agreements to arbitrate future disputes and limit their fulsome due process citizen rights to a federal court believing they will obtain a quicker answer with less costs. . . . Federal courts continue to resolve matters . . . more expeditiously than in many private arbitrations. As confirmed in this case, the lawyer and arbitrator fees and costs in private arbitrations are often equal or exceed the fees in a taxpayer-funded and Article III Court from which there are meaningful rights to appeal. Lastly, as the parties learned in this case, once they seek judicial scrutiny or confirmation in the public courthouse, they may lose secrecy.

We favor alternative dispute resolution especially between parties of equal bargaining power motivated to finally resolve their dispute in private and with no appeal right. Parties can always seek the aid of this Court or, if necessary, an experienced private mediator, including men and women who formerly served this Court with distinction, in reaching a confidential settlement. While we encourage private settlements, this case, and many like it, should remind parties and counsel of the risks in cavalierly agreeing to mandatory arbitration when they should know, from experience, of a need to often ask a judicial officer to vacate findings from a private forum and the judge’s deference to the private forum.

While the court raised valid and arguable points in its analysis, those comments stand alone in the opinion, without an opposing voice. It will be interesting to see whether the case is appealed to the Third Circuit and, if so, whether that court will take the opportunity to either add to or disagree with the comments and the district court’s clear concern regarding binding arbitration in the employment arena.

 

 

Soccer flick-up still taken by permission from “22 Flick Up Advanced Soccer Tricks”

 

“Aberrant” behavior by a police officer supported employer’s decision not to return the officer to work after brain surgery .

doctors note

The 6th U.S. Circuit Court of Appeals has held that under the Americans with Disabilities Act (ADA), an employer may rely on a credible, scientifically-based medical opinion to exclude someone from returning to work, even if that opinion is contradicted by another medical provider’s opinion.

This holding came in the case of a city that decided not to allow a police officer to come back to work after his medical leave for brain surgery. Michael v. City of Troy Police Department, et al, 6th Circ., No. 14-2478, December 14, 2015. Here’s a timeline of the relevant facts:

  • Todd Michael began working for the City of Troy, Michigan, as a police officer in 1987;
  • In 2000, Michael was diagnosed with a non-cancerous brain tumor;
  • Michael underwent surgeries in 2000 and 2001, each of which was only partially successful in removing the tumor;
  • The City granted paid leave for each surgery and returned Michael to work after each, once his surgeon cleared him for work;
  • In 2007, the City became aware of certain “aberrant” behavior on Michael’s part that continued into 2009;
  • The behavior included episodes in which Michael secretly recording marriage counseling sessions with his then-wife and then used the recordings in an attempt to charge her with perjury;
  • He also filed a lawsuit against the police chief after the chief was provided a number of steroid vials (some of which were labeled “for veterinary use only” and some with labels in foreign languages) belonging to Michael;
  • Finally, the City learned that Michael accompanied a drug dealer to several drug deals without explanation or work-related reason;
  • The City began an internal investigation into these issues, but the investigation was suspended when, in early 2009, Michael informed his superiors that he needed additional brain surgery;
  • The surgery took place in 2009, and Michael’s surgeon subsequently cleared him to return;
  • In light of Michael’s pattern of behavior beginning in 2007, the City informed Michael that he had to pass a psychological evaluation before he returned to work.

The neuropsychologist to whom Michael was referred by the City interviewed Michael for a total of seven hours, conducting various neurological tests, and then drafted an 11-page detailed written report in which she opined that he “may be a threat to himself or others.” Based on that report, the City put Michael on unpaid leave.

Subsequently, Michael sought his own evaluations and received opinions from other medical providers that he was fit to return to duty. (One other neuropsychologist hired by Michael to evaluate him agreed with the original opinion of “direct threat” – but Michael did not provide that report to his superiors.)

Michael then sued the City of Troy and its police department under the ADA, alleging that he was a “qualified individual with a disability,” and that the City had discriminated against him on that basis. The lower court granted summary judgment in favor of the City, holding that Michael was not qualified for the position of patrol officer. Michael appealed to the Sixth Circuit, which upheld the lower court’s ruling.

The ADA protects individuals who are qualified for their positions from unfair firings or demotions. However, under that same law, a disabled individual is deemed not to be qualified if he or she poses a “direct threat” to the health or safety of others which cannot be eliminated by a reasonable accommodation.

Whether an employer properly determines an individual to be a direct threat, for purposes of the ADA, depends upon the objective reasonableness of the employer’s actions. For example, an employer’s actions are deemed to be reasonable when the employer relies on a medical opinion that itself is objectively reasonable. That opinion does not have to be uncontroverted and may conflict with other opinions, but still can be viewed by the courts as objectively reasonable if based on sound and thorough medical reasoning.

The Sixth Circuit pointed out that there have been cases in which courts have held medical opinions of “direct threat” to be unreasonable – but those cases did not involve the level of detail found in the report regarding Michael.  In one case, a doctor opined that an individual could not be a lifeguard because “he’s deaf” and in another, a doctor simply provided “two scribbled lines at the bottom of a boilerplate evaluation form.”

According to the Sixth Circuit, the combination of the neuropsychologist’s testing and opinion, along with the investigation of Michael’s own conduct, led the City to its objectively reasonable conclusion. A well thought-out and detailed dissent in this case raises points for discussion, including questions regarding the court’s criteria for the determination of what constitutes a “reasonably objective” medical opinion. This issue seems to be far from clear, and is one that both employers and employees should be watching for further development.

Have you heard the term “gig workers” yet? You will.

Threadgills 2013

Economists and business commentators believe that the U.S. economy is moving from a world of corporations to a world of “pop-up” businesses. Further, they point out that these pop-up businesses are powered by what’s becoming known as “gig workers” – a term borrowed from the music industry, where musicians move from job to job (gig to gig), employed for a particular performance or a defined time, with little more connection to the venue than to the fast food they’re eating for lunch.

While the concept has been around for years, it has been gaining traction through articles from both supporters and nay-sayers. First, there was attention to the change from large corporations to smaller, more agile businesses:

  • In a You Tube video posted on March 21, 2014, Gerald F. Davis, Professor of Sociology at the University of Michigan spoke on “The Coming Collapse of the American Corporation (and What Comes Next?).” According to Professor Davis, public corporations have become “less concentrated, less integrated, less interconnected at the top, shorter-lived, and less prevalent since the turn of the twenty-first century.”
  • In May 2014, Economist Richard Florida (“Rise of the Creative Class”) wrote an article titled simply: “The Rate of New Business Formation Has Fallen By Almost Half Since 1978” which generally supported Davis’ assertions.

More recently, there has been a flurry of attention to the fact that with the slowdown of business dynamism – the rate at which firms are created – a different kind of job force is rising:

Why does any of this matter? With recent attention on both proposed overtime regulations and independent contractor classifications, advocates for employers and employees are struggling with how workers should be classified for tax and employment purposes.

For employees who fall between the traditional “employee” classification and formal “independent contractor” status, the question is critical. While employees enjoy employer contribution to Social Security and Medicare and reimbursed business expenses, independent contractors normally shoulder those obligations.

With increasing numbers of on-demand businesses (think Uber, Thumbtack, and at-home pet care or massage services), workers get to choose when and where to work. But these service providers generally have no benefits or legal protections. That could change.

Two former members of the U.S. Department of Labor – attorney Seth Harris and economist Alan Krueger – recently authored a white paper entitled “A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: ‘The Independent Worker’.” The two suggest that a new “independent worker” classification for gig workers should be considered which would entitle those workers to bargain collectively, and would allow them to become eligible for certain tax contributions from employers.

The broadest suggestion made in the paper is the construction of a “portable benefits system,” in which independent workers could pay into a universal fund on a pro rata basis (calculated by hours on a job, numbers of tasks done, etc), rather than be required to participate in any one employer’s plan. In addition, the authors argue that antitrust laws should be amended to allow gig workers to organize for the purpose of aggregating bargaining power, in order to collectively influence compensation and benefits.

While the “gig worker” classification has yet to become a mainstream concept, there clearly is movement in that direction. Corporations and companies – especially those in on-demand businesses – should watch carefully to see where this idea goes, and whether it is picked up by policy-makers and/or government agencies with a voice in worker classification issues.

 

 

Photo of the band Autosalvage playing a gig at Threadgills in Austin, TX in 2013.

Preparing for an on-line (Webinar, Skype, Google Chat) presentation? Here are 10 things to remember.

Wizard of Oz

As a presenter – or any type of communicator – there are a lot of ways to get the message across to a remote audience, and a lot of different styles in which to do it. But regardless of style, topic, and internet medium, there are three areas that can’t be ignored: tone, substance, and organization. The most important issues for a successful internet-based presentation can be summarized in ten basic statements.

TONE:

  • Know your audience. Obviously, a presentation for a group of third graders is going to be done in a different tone than one being done for a group of Ph.D.-level college professors. But what about speaking to human resource professionals as opposed to a group of first-line managers; or teaching a group of law students, as opposed to presenting to in-house attorneys? Until you know a little more about the specific audience, you can’t plan your presentation and won’t know whether to use a story-telling tone, or a more formal instructive voice. The right “voice” can help an attendee will feel as if the message is “pitched” to him/her, and will increase audience engagement.
  • Speak at a slow, steady pace. In conversation, we speak quickly, using sentence fragments and short, punchy phrases to get the message across. Presentations are different, especially internet-based sessions, in which the presenter often feels as if she’s talking into a bucket. Something that can help is “adding punctuation” to your sentences. Take a short breath when you would use a comma [like now], and a longer one for the period at the end of each sentence [you got it]. Practice this – it will make a difference in the pacing of your speech.
  • Rehearse your message. Under no circumstances should you ever try to “wing it” for an internet-based session. What will happen is that you’ll rely too heavily on your power point, which means that you will be tempted to read it to the audience – something about which attendees often complain. An audience wants to feel engaged, and feels less so if you’re simply reading what you’re already expecting them to read. Rehearsing your presentation will eliminate that tendency.

SUBSTANCE:

  • Know your audience (again!). While it’s often difficult to know the specifics about the group who will be attending an on-line program, find out what you can, including the substantive expectations that have been set through pre-advertising, and to whom the presentation has been pitched, then speak as if that group is in front of you – and cover everything that’s been promised.
  • Pitch your message to the middle. Once you know who the audience is, move forward nder the assumption that there will be a variety of knowledge levels within that group. Define terms. For example, EEOC, OSHA, OFCCP, NLRB are terms that employment lawyers and HR people might know, but line managers may not, and may become disengaged in the session without additional explanation. Also, clarify any processes to which you refer.
  • Don’t try to cover too much material. This one is self-explanatory. While it may be important to provide a thorough explanation of the topic, don’t try to anticipate every question. It’s okay to leave something for the Q&A at the end. In fact, it’s not a bad idea to write up a couple of “soft ball” questions for the moderator to ask you if the audience is slow to provide questions at the end of your formal presentation.

ORGANIZATION 

  • Use the tried-and-true process. The three-step maxim of public speaking is “Tell them what you’re going to tell them; tell it to them; then tell them what you told them.” This is a no-fail recipe. People want to know what’s coming and then after being taught, they appreciate a quick wrap up of what they should take away.
  • Use a bullet point outline. It doesn’t pay to write a word-for-word script, since the temptation then is to read it. A bullet point outline – typed in bold and in at least 14 point font – allows a little more flexibility, especially for answering questions, as you’ll be able to move seamlessly among the points that you’ve covered. (Johnson & Hunter, Inc. has posted a great article on Notes as Your Visual Aid for public speakers.)
  • Create a clear method for follow-up. Audience members often think of questions after the presentation has ended and everyone has signed off. Be sure to provide a method for contact, whether you use e-mail, website, or phone, and take the time to weave that information into the last minute or so of your presentation, saying it slowly and clearly or referencing the page of the power point on which the information is included.

In addition to the Tone, Substance, and Organization points set forth above, there one more very important point that applies to every presentation.

  • Make sure that all of the “moving parts” work. If you’re going to include a live demo in the session, try it out at least once beforehand with a mock-audience, to confirm that it will work as planned. If you plan to loop in a second presenter or a “special guest,” assure that the extra connection will work when needed. If you use an audience participation mechanism, work with the moderator before the session to assure that everything will go as it should.

Communication matters. But it’s extra important when the presenter and audience are not in the same locale. Internet sessions are challenging, but can be less so when attention is paid to the ten tips above.

 

Photo from The Wizard of Oz (“Pay no attention to the man behind the curtain. . . .”).

 

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

bandage-thumb

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.

SolwayfirthSpaceman

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 – https://en.wikipedia.org/wiki/File:SolwayfirthSpaceman.jpg#/media/File:SolwayfirthSpaceman.jpg

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.

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