Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

The federal Occupational Safety and Health Administration (OSHA) has written an enforcement directive for purposes of investigating and dealing with incidents of workplace violence. The directive, issued on September 8, 2011, will be used by OSHA’s district supervisors and area directors in determining whether or not to conduct an investigation into allegations of workplace violence, and includes inspection procedures that will be followed by the agency’s compliance officers while conducting such inspections. It also suggests various methods of abatement available to employers in workplace violence situations.

The directive expands the typical definition of workplace violence to include “threats of assault,” as well as actual assaults, directed toward individuals at work or on duty. It lists four categories of workplace violence based upon the relationship between the perpetrator of the violence and the target of that violence. Briefly, the four categories are: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, etc.); (3) co-worker (violence against co-workers by a current or former employee); and (4) personal (violence in workplace by a non-employee who has a relationship with an employee).

The directive identifies high-risk industries that are particularly susceptible to workplace violence, and focuses on two of them: health care/social service settings, and late-night retail settings. It also spells out various risk factors that may indicate the potential for workplace violence. These include: (1) working with unstable/volatile persons in certain health care/social service or criminal justice settings; (2) working alone or in small groups; (3) working late at night or during early morning hours; (4) working in high crime areas; (5) guarding valuable property or possessions; (6) community-based health or drug abuse clinics; (7) exchanging money in certain financial institutions; (8) delivery of passengers, goods or services; and (9) mobile workplaces (i.e., taxi drivers).

OSHA advises that inspections "generally shall not be considered" if the allegation of workplace violence is based solely upon threats by co-workers, but further states that OSHA may refer such incidents to the appropriate criminal enforcement agency, the Equal Employment Opportunity Commission, or the National Labor Relations Board for follow up investigation. OSHA inspections may be initiated following a complaint, referral, fatality or catastrophic event (which is defined in the directive as hospitalization of three or more employees) involving an incident of workplace violence. Inspections are more likely in high-risk industries or workplace settings that include the cited "risk factors." Employers also may face citations for potential workplace violence issues during programmed inspections.

The directive lists certain actions or mechanisms available to employers to minimize or eliminate the risk of workplace violence (including alarm systems, panic buttons and hand-held alarms). According to OSHA, administrative controls also could include establishing liaisons with local police and state prosecutors, implementing a mandatory reporting policy, maintaining a log book of all reported assaults or threats, and advising employers of procedures for requesting police assistance or filing charges.

The importance of this new directive is its relationship to OSHA’s General Duty Clause. Under that clause, an employer has a “general duty” to provide a safe workplace, and OSHA has the power to enforce deviations from that duty and impose fines and penalties for violations. The extension of OSHA into incidents and threats of violence is an event to which employers should pay close attention. The extent and manner in which workplace violence is managed by an employer will directly affect its ability to defend against OSHA citations and other potential civil or criminal proceedings related to such incidents.
 

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The Occupational Safety and Health Administration (OSHA) may issue citations for safety violations at construction sites.  Further, at those construction sites, OSHA may hold one employer responsible for the safety violations of other employers if the initial employer could reasonably be expected to prevent and abate the violations, based on some supervisory authority or control over the worksite.  OSHA takes such actions under its “multi-employer citation policy.”  Recently, in a logical extension of that general policy, the Occupational Safety and Health Review Commission (OSHRC) reversed its own initial determination and upheld a citation against a general contractor for a safety violation that the contractor did not commit and to which none of the contractor’s own employees were exposed.   Sect. of Labor v. Summit Contractors Inc., OSHRC, No. 03-1622, 7/27/09.

In that case, Summit Contractors was the general contractor on a college dormitory construction site in Little Rock, Arkansas in June 2003.  On June 18 and 19, an OSHA compliance officer observed and photographed employees of a sub-contractor, All Phase, working on scaffolds without fall protection.  Summit had four employees at the site on those days, each of who had oversight responsibility for subcontractors on the project, including All Phase.  Summit’s contract with the owner of the project assigned to Summit the “exclusive authority to manage, direct and control” the construction, and required compliance with “applicable laws.”  Summit’s contract with All Phase permitted Summit to terminate and remove All Phase if it disregarded OSHA regulations.  Based on those facts, OSHA issued a “serious” citation to Summit for the violation.   

An administrative judge upheld the citation, and Summit contested that decision.  An initial determination by OSHRC precluded the Secretary of Labor from issuing the citation to Summit as a “controlling employer” for a violation created by another employer Summit’s own employees were not exposed to the hazard.  The Secretary appealed the holding to the 8^th U.S. Circuit Court of Appeals, which rejected that conclusion and remanded the matter for “further proceedings.”  On remand, the OSHRC reversed its initial determination, and concluded that Summit was a “controlling employer properly cited under the multi-employer citation policy for violative conditions it did not create and to which none of its employees was exposed.”  The reversal was based largely on the fact that although Summit was aware of the unsafe conditions with respect to the scaffolding, it failed to inform All Phase of that safety violation.  That inaction was determined to be a failure to take the required “reasonable steps and measures necessary to obtain abatement,” and was deemed sufficient to support OSHA’s designation of a “serious” violation.

The lesson is clear: in addition to an employer’s general duty to comply with OSHA’s safety regulations, any company deemed to have supervisory control over a worksite - especially if that responsibility specifically includes the power to correct safety and health violations - must exercise reasonable care to prevent and detect violations on the site, whether or not those violation affect the company’s own employees.  To do otherwise risks liability for the penalties associated with citation by OSHA.

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Last month, the 10th U.S. Circuit Court of Appeals determined that Oklahoma laws supporting the right of individuals to possess firearms in locked vehicles on company property are not preempted by the federal Occupational Safety and Health Act, and therefore are enforceable. That decision rested on the facts that the Oklahoma state statutes were instituted to regulate employees as members of the general public and not as “workers” and, therefore, that the statutes did not conflict with OSHA standards.

In an interesting follow up, the 6th U.S. Circuit Court of Appeals has addressed a similar issue from a different perspective, and has upheld an employer’s anti-firearm policy. In that case, an individual’s employment termination after the discovery of a firearm in his vehicle on company-controlled property was held not to have violated “public policy,” even though the state’s constitution guarantees its citizens the right to bear arms for defense and security. Plona v. UPS, Inc., 6th Circ., No. 08-3512, 3/6/09.

Gary Plona was fired from his job with United Parcel Service, Inc. (UPS) in Cleveland, Ohio, after a firearm was found in his vehicle, which was parked in a UPS-leased parking lot adjoining his workplace. UPS has a written policy prohibiting its employees from possessing firearms while on company property or while conducting company business; the prohibition specifically includes its parking lots and customer sites. Plano signed an acknowledgement form indicating that he was aware of that policy.

In April 2006, sheriff’s deputies were in the process of conducting a search of cars in the parking lot after receiving a report of contraband located in that area. During that search, a search dog being used by the deputies identified Plona’s car as suspicious. While giving consent for a search of his car, Plano admitted that there was a firearm in that vehicle. There was, in fact, a .22 caliber Luger pistol under the front seat, and an empty ammunition magazine in the glove box. Plona did not have a permit to carry a concealed weapon, nor had he registered the pistol. When UPS was made aware of the situation, Plona was fired.

Ohio is an “at-will” employment state – which means that an employer may fire an employee “for any cause, at any time whatsoever,” even if that termination is a violation of certain employee rights. However, the Ohio Supreme Court has carved out an exception to that at-will employment doctrine for circumstances in which an employee’s firing contravenes public policy. In other words, an individual cannot be fired for reasons that would jeopardize a clear policy for the public good.

Plona filed a lawsuit against UPS, alleging that he had been fired in violation of public policy - the right to bear arms embodied in Article I, Section 4 of the Ohio Constitution. However, the district court granted summary judgment in favor of UPS, holding that Plona had not demonstrated that a clear public policy had been jeopardized by his termination. On appeal, the Sixth Circuit upheld that decision, finding that Ohio does not, in fact, have a clear public policy with respect to the allowance of firearms at workplaces. In support of that holding, the Court pointed out that at least one Ohio law specifically provides that employers may “prohibit[] the presence of firearms on the private employer’s premises or property.”

While Plona attempted to prove that UPS’ reason for firing him was “pretextual,” the Court pointed out that such a rationale simply goes to the “fairness” of the termination. Ohio’s at-will doctrine allows termination for any reason, fair or unfair. The real issue in this case is whether Plona’s termination was against a clear public policy, which would make it illegal. The Court found that UPS plainly was within its rights - as spelled out by Ohio law - to prohibit firearms in the workplace. Plona’s firing was not a violation of public policy, and dismissal of the case was appropriate.

While this result differs from the Tenth Circuit’s decision to uphold Oklahoma’s statutes related to firearms in the workplace, the different results were premised on vastly different state laws. The Tenth Circuit’s decision was based on the wording of two Oklahoma laws that specifically include provisions holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property. In this case, the Ohio legislature’s intent to provide authority to employers with respect to limiting firearms at work sites forms the basis of the Sixth Circuit’s opinion. While workplace safety remains a primary focus of most employers, employers also should remain alert to state and local laws related to firearms, and to developing case law in this area, in order to avoid liability for an inadvertent violation of the law.
 

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