The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces. The document, entitled, ...


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OSHA suggests employer best practices for anti-retaliation programs

The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.

The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:
  1. Management leadership, commitment, and accountability
  2. System for listening to and resolving employees' safety and compliance concerns
  3. System for receiving and responding to reports of retaliation
  4. Anti-retaliation training for employees and managers
  5. Program oversight
While OSHA does admit that its recommendations are "advisory" and "do not interpret or create any legal obligations," OSHA is quick to point out that it interprets retaliation broadly and suggests that it is in the best interest of employers to adopt an effective and meaningful anti-retaliation program. Nevertheless, the document offers good pointers for employer looks for guidance on key topics such as how to create a system for listening to and resolving employees’ safety and compliance concerns, how to ensure the prompt resolution of employee complaints, and how to discipline a complaining employee without appearing retaliatory,

Retaliation has been a hot-button issue for OSHA over the past eight years. It will be interesting to watch whether this remains the case in President-Elect Trump's administration, especially if OSHA loses funding to support to resources necessary to investigate all but the must egregious of retaliation complaint.


Pets in your workplace? Assess the risks and draft a policy.

A reader recently emailed the following question:
Some people need service dogs to get to work. But many more simply want to take their dogs to work. What is the protocol? What are the HR rules on this? And what are the penalties for illegally taking a dog to work?
Are you thinking about opening up your business to employees’ pets? You will find very few resources on the internet to help. And, you will need a written policy before you allow pets in. Here are some considerations:
  1. People come first. Despite your desire to allow pets—whether as a perk, a recruitment tool, or both—your employees still make up the core of your enterprise. If you have to choose between an employee or a pet, you should always choose the employee.

  2. One of the biggest legal risk is the Americans with Disabilities Act. If an employee is allergic to animals, pet owners must understand that they may have to leave their animals at home as a reasonable accommodation. Other possible accommodations include creating sufficient separation between the allergic employee and the pet, segregating the pet to a specific part of the facility, or improving ventilation. Ignoring the pleas of an allergic employee, though, will open you up to potential ADA liability. On the converse, in all but the most extreme circumstances, you are likely required to allow a service dog (or miniature horse) as a reasonable accommodation, even if you prohibit all other pets.

  3. Animals must of “office broken.” Animals with any bite history should not be permitted. Moreover, any aggressive behavior, such as growling, barking, chasing, or biting, should result in the animal’s expulsion on the first complaint. Animals should also be house broken, friendly towards people and other animals, and not protective of their owners or their owners’ spaces. Finally, you should define when animals must be leashed or caged, and what is expected of employees when they have to leave the workplace during the work day.

  4. Respect for property. Designate a specific area outside for animals to go to the bathroom (preferably away from the entrances), and make sure pet owners understand that it is their responsibility to clean up messes outside and accidents inside.

  5. Licenses and vaccinations. Before being permitted to bring animals to work, owners should verify that vaccinations are up to date, and that the animal licensed and free of parasites and insects. 

  6. Liability. Employees should verify, in writing, that they have sufficient home owners’ or renters’ insurance to cover any damage to person or property caused by the animal. You should also consider indemnification in case your business gets sued, and a written paycheck deduction authorization for any damage caused.
If you are considering having a pet-friendly workplace, I recommend contacting employment counsel to walk you through the risks and to assist in drafting an appropriate policy.


SCOTUS to review NLRB ban on class-action waivers

One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity. This issue is significant, as employers seek to use class-action waivers to combat the plague of wage-and-hour lawsuits.

In the four years since D.R. Horton, the NLRB has invalided hundreds of class-action waivers. On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, the Supreme Court is poised to have the final say.

Late last week SCOTUS agreed to hear the appeal of three cases, which should put this issue to bed once and for all. In NLRB v. Murphy Oil USA (5th Cir., holding that the “corporation did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.”), Lewis v. Epic Systems (7th Cir., holding that an arbitration agreement that “precludes employees from seeking any class, collective, or representative remedies to wage-and-hour disputes” violates the NLRA), and Morris v. Ernst & Young LLP (9th Cir., agreeing with Lewis, holding that “an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms and conditions of employment.”), the justices agreed to decide whether agreements to require employees to forgo class actions or collective proceedings, and instead resolve employment disputes via individual arbitration, violate the NLRA.

Stay tuned to this space for updates we move through oral argument and the opinion, as this case is poised to be one of the most significant of 2017. 


WIRTW #444 (the “training” edition)

The workplace training video. I hope yours go better than this example.


Here’s what I read this week:


Social Media & Tech

HR & Employee Relations

Wage & Hour


OSHA & Safety


… and an early contender for worst employer of the year

We already have a nominee for worst employee of 2017, so why not share the love and nominate a worst employer.

Drum roll…
Man Fired For Attending Son’s Birth 
The first day of the new year was pretty eventful for Lamar Austin. The 30-year-old welcomed a son and got fired on the very same day — Jan. 1.… 
On Dec. 31, Austin’s wife Lindsay went into labor. He decided that he was going to stay by her side for the birth of their son…. Yet, in order to do this Austin had to forgo two days of work as a part-time security guard with a company called Salerno Protective Services while his wife was in labor. 
“I thought, ‘I’m just going to do what I feel is right for my family,’ and that’s it,” he told the Huffington Post.
Austin, a military veteran and father of four, had just started the job and was on a 90-day trial period. Despite having shown up to all his previous shifts, he received a text at 1 a.m. on Jan. 1, informing him that he was terminated due to his absences.
Thankfully, my faith in humanity is not shaken. The Huffington Post reports that Austin’s email has been flooded with job offers since this story broke.

And, yes, I get it. New employee. No FMLA. Unclear whether he properly called off work. But seriously? Military vet. New father. Fired via text while by his wife’s postpartum bedside. Am I wrong to think that Salerno Protective Services deserves this nomination?

We will circle back at the end of the year to see if any employer can top this. But, for now, congratulations Salerno Protective Services, you are my first nominee for the Worst Employer of 2017. Follow along all year for future nominees, and an exciting year-end poll to name the winner (or is it the loser?) of this exciting new feature.


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