traps for the unwary

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In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.”
Continue Reading Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the en banc decision, the full 8th Circuit refused to enforce the NLRB’s unfair labor practice finding and held that an employer may fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The court emphasized that “allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business” and that the fired MikLin employees made a conscious decision maximize this effect by choosing to launch their attack during flu season. The court added:

“By targeting the food product itself, employees disparaged MikLin in a manner likely to outlive, and also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave, the image of contaminated sandwiches made by employees who chose to work while sick was not one that would easily dissipate.”

Continue Reading Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

In its recent decision, Clendenin v. Girl Scouts of W. Ohio, the Supreme Court of Ohio definitively decided that an Industrial Commission order determining that a pre-existing condition that was substantially aggravated by a work-related incident has returned to the pre-injury level is an issue that may not be appealed to a court of common pleas.

While working for the Girl Scouts of Western Ohio, Audrey Clendenin (Clendenin) was injured on Oct. 21, 2008. Her claim was recognized for multiple right shoulder conditions as well as substantial aggravation of pre-existing dermatomyositis, a rare inflammatory disease. In March 2013, the Ohio Bureau of Workers’ Compensation (BWC) filed a motion to abate the claim for the substantial aggravation condition. The Industrial Commission granted the motion, finding that compensation and medical benefits were no longer to be paid in the claim for the allowed substantial aggravation condition.Continue Reading Some clarity: The Supreme Court of Ohio definitively decides procedure for abatement of substantial aggravation conditions

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.

Background

Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as an officer in the Navy Reserve. Throughout his employment, FedEx allowed Savage leave for military duties and permitted him to complete military computer training while at work. In 2012, Savage began complaining about the calculation of his pension benefits as it related to breaks in service for military leave.Continue Reading FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits

The Occupational Safety and Health Administration (OSHA) announced recently that it intends to delay the initial deadline for compliance with its rule requiring employers to report accident and illness records to OSHA electronically. Under the original deadline, employers with over 250 workers and smaller employers in high hazard industries would have been required to begin electronic filing of certain OSHA-required forms on July 1, 2017. For a more detailed discussion of the electronic recordkeeping rule, go here. That deadline is now off and OSHA has promised a formal notification in the future with more information about revised deadlines.
Continue Reading OSHA delays electronic reporting requirement start date

A recently published decision of an Ohio Court of Appeals reminds us that, particularly in this electronic age, employers need to be very careful in the handling of confidential medical information. The decision is also a reminder that sometimes the outcome of a case can depend on the precedent in a particular appellate district.

In Templeton v. Fred. W. Albrecht Grocery Co. the 9th District Court of Appeals (for Summit County, Ohio) the employee responsible for managing workers’ compensation claims for the employer inadvertently sent a psychological report regarding the plaintiff to other employees rather than to the plaintiff’s attorney as she intended. The plaintiff brought suit alleging unauthorized disclosure, negligence and invasion of privacy. In response, the employer filed a motion to dismiss the claims as a matter of law.

The trial court dismissed the unauthorized disclosure and negligence claims at the outset and then, ultimately granted summary judgment as to the invasion of privacy claim. The plaintiff then appealed.Continue Reading Ohio Appellate Court dismisses privacy breach lawsuit against employer

In a recent “work from home” decision by the U.S. District Court for the Eastern District of Pennsylvania, the court denied Sneaker Villa, Inc.’s, (the employer) motion for summary judgment. Slayton v. Sneaker Villa, Inc. Why is that important? In employment discrimination lawsuits, an employer’s earliest opportunity to have a case dismissed without the cost and risk of a jury trial is with a summary judgment motion. If the motion is denied, the case is headed for trial. The risks go up, the costs go up and, typically, so do the plaintiff’s settlement demands. In this case, the court decided that the question of whether the employer should have allowed work from home as a reasonable accommodation should be decided by a jury. The case is a reminder that an employer can jump too quickly to the conclusion that a request for a work from home assignment cannot be accommodated.

What happened?

The employee, Ms. Slayton, suffered fractured vertebrae and head trauma in a bus accident. After approximately two months of short-term disability leave, Ms. Slaton asked to return to her job as a corporate recruiter with the accommodation of working from home for four weeks, or until her physical therapy was completed. The employer denied the request to work from home and said that Ms. Slayton’s job would have to be filled because of the critical recruiting period that the employer was about to enter.
Continue Reading Work from home case shows importance of job descriptions and interactive dialogue

bradswifeThough you may find it hard to believe, there are some things that southern comfort food and a glass of sweet tea just can’t smooth over. Restaurant chain, Cracker Barrel, is finding this out the hard way this week as it draws the ire of the public after Bradley Reid Byrd, the husband of a former Cracker Barrel employee posted one simple question on Cracker Barrel’s Facebook page on Feb. 27, 2017: “Why did you fire my wife?”

The post went largely unnoticed until March 22, 2017 when comedian Amiri King posted the screen grab (above) to his Facebook page and the ordeal went viral.Continue Reading #Justiceforbradswife: Responding to viral social media

In November 2016, a Boeing employee experiencing difficulty formatting an Excel spreadsheet. Not realizing that hidden columns included birth dates and social security numbers for 36,000 Boeing employees, he emailed the spreadsheet to his wife, who was not a Boeing employee, so she could help. This seemingly innocent act prompted Boeing to launch an investigation …