Senate HELP Committee Chairman Lamar Alexander (R-Tenn.) grilled a DOL witness at a Senate subcommittee hearing about why OSHA investigators are being instructed to ask questions to determine whether a franchisee and franchisor are joint employers instead of focusing on health and safety. The clear answer he got underscored the fact that someone must be held accountable for worker health and safety.
At a September 23 hearing held by the Senate Homeland Security and Government Affairs Subcommittee on Regulatory Affairs and Federal Management, Alexander decried what he called the NLRB’s overturning of three decades of labor policies to create a new standard for a “joint employer” that says merely “indirect control” or even the potential to control working conditions will now make two separate employers joint employers. He was talking about the Board’s controversial decision last month in Browning Ferris Industries of California, Inc. dba BFI Newby Island Recyclery, which loosened the joint employer standard.
Leaked memo. Alexander pointed out that the day before the NLRB issued its Browning Ferris decision, Politico reported that OSHA officials were asking regional directors to use the same new standard for joint employment when looking at violations at franchises. “It looks like a coordinated effort to change the law to me,” Alexander said.
The Senator was referring to a memo internally circulated at OSHA, which pondered whether “for purposes of the OSH Act, a joint employment relationship can be found between the franchisor (corporate entity) and the franchisee so that both entities are liable as employers under the OSH Act.”
“If you’re going to change the OSHA law, which goes back to 1970, to say that instead of looking at health and safety, you suddenly want to have your investigators looking at a test for whether a franchisee and a franchisor are joint employers, don’t you think that ought to be a change in the law that Congress makes or at least a rule or a regulation?”
Alexander queried, “Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not? Why does OSHA care about that? Why isn’t OSHA interested in health and safety?”
Who’s responsible? Mary Beth Maxwell, Principal Deputy Assistant Secretary and head of the Office of the Assistant Secretary for Policy at the DOL, gave a clear answer—investigators need to know who’s responsible. She also noted that there is more than a decade of case law under the OSH Act that has recognized the concept of applicable joint employment. She also explained that investigators must look at all different types of work arrangements, and there are elements of joint employment may be implicated.
As to the memo Alexander referenced, Maxwell said it was not guidance and it was just a draft. Rather it included a draft list of questions that teaches investigators what they should be asking about.
When pressed by Alexander as to why OSHA, which deals with health and safety, should be asking such questions, Maxwell said that while the focus is on health and safety, investigators need to better understand who is responsible for the health and safety of the workers.
It’s one of those fact situations that seem hard to comprehend, but an OSHA ALJ found that an operator of a western theme park failed to take adequate steps to prevent the use of live ammunition at its reenactment of an Old West-style gunfight.
Lucky enough to have escaped death, a senior cowboy employed by the park was seriously injured while performing in a recurring Sundance Kid show. A doctor found a “bullet hole through [the victim’s] left frontal bone,” a “bullet tract extending from the left frontal scalp in a parasagittal pan through the frontal, parietal, and occipital lobes,” and a bullet fragment lodged “above [the victim’s] tentorium cerebelli in the midline against the calvaria.” “Put simply, [he] had been shot in the head…,” the ALJ noted.
How did this happen? Incredibly, show performers were permitted to bring their own guns capable of firing live rounds and their own ammunition (blanks or otherwise) to their performances. Tragically, a live round found its way into a performer’s gun, though a later police investigation found no intentional acts. Since the incident, the operator changed its policy to prohibit the use of outside ammunition and to permit only blank-firing guns.
Finding a violation of the OSH Act’s General Duty clause, the ALJ assessed a penalty of $1,250. Though the Secretary of Labor initially recommended a gravity-based penalty of $2,500.00, which reflected an incident characterization of high severity and low probability, the amount was reduced by 50% due to operator’s size and lack of violation history.
By Lorene D. Park
In the wake of heartbreaking incidents of workplace violence that make national headlines, it is natural for employers to reevaluate workplace violence policies to try to avoid similar incidents. When it comes to enforcement, and firing employees for violating any policy, employers will be concerned about potential liability if the employee sues for discrimination or other claims. But having viewed cases where threats of violence played a key role, I believe “zero tolerance” and consistent enforcement is the best way to go. When it comes to firing someone for threatening coworkers or supervisors, courts generally side with employers. For example:
- The Ninth Circuit recently affirmed summary judgment for an employer on an employee’s disability discrimination claim under Oregon law because, even assuming he had major depressive disorder, he could not show he was “qualified” at the time he was fired because he repeatedly threatened to kill coworkers. Though he claimed to have been bullied at work, the appeals court noted that an “essential function of almost every job is the ability to appropriately handle stress and interact with others.”
- Denying enforcement of a National Labor Relations Board order, the Eighth Circuit found that an employee’s termination under a zero tolerance workplace violence policy, after he made a “cut throat” gesture toward a coworker, did not constitute a violation of the NLRA because the discharge did not result from the employee’s participation in a strike.
- A highway engineer’s Title VII retaliation suit was dismissed after a federal court in Indiana found that he failed to show he was meeting his employer’s legitimate expectations at the time he was fired. He had violated the workplace violence policy in angrily pointing a finger at his manager in a threatening manner while stating he “hated [his] guts” and would “never lay eyes on [him] again.” His affidavit explaining his version of events failed to dispute the manager’s sincere feelings of being threatened.
- In a recent NLRB ruling, a three-member panel held that an employer did not violate the NLRA by firing an employee who threatened a coworker (and member of the union executive board). Under the employer’s work rules, threatening an employee is a “major offense” for which employees are subject to discharge without warning.
As these cases indicate, so long as an employer fires an employee because he or she was violent or has threatened violence, and not for an unlawful reason such as discrimination (using fear of violence as a mere pretext), the employer is unlikely to face liability. Moreover, in cases where employers don’t stop intimidation, violence, or threats, they significantly increase their chances of liability for a hostile work environment or other claims. In one case, the Eighth Circuit reversed summary judgment against an American-born woman’s Title VII claim concerning a group of Somali-born immigrants who were her subordinates and who engaged in name-calling, used threatening language and stance, threw files, and said “American women were disrespectful because they were not beaten enough.” Though the hostility came from subordinates, it was tolerated by higher management, which ignored her complaints and denied her authority to fire an offending employee. That was enough to support her hostile work environment claim.
Prevention comes first. When it comes to best practices, having a zero-tolerance policy prohibiting violence and threats of violence is not enough. Prevention comes first: supervisors should be trained to recognize and report potentially violent coworkers. Individuals do not usually just “snap,” and there are often signs which, if recognized, could lead to preventative action. Some signs could include:
- Increased use of alcohol or drugs and unexplained absences
- Decrease in attention to appearance and hygiene
- Depression, mood swings, suicidal comments, or talk of problems at home
- Unsolicited comments about firearms or other weapons
- Signs of domestic abuse
- Verbal threats or acts of aggression at work, including menacing gestures, intimidation, disorderly conduct, and aggressive “horseplay”
That is not to say that everyone who has one or more of these signs will become violent and certainly some signs are bigger red flags than others. The point is simply to train managers and employees to recognize warning signs and to report them, and train all staff on steps to take when faced with violence or threats of violence. OSHA’s website on violence provides valuable information on risk factors, prevention programs, training, and enforcement. It also issued a fact sheet that provides helpful suggestions for addressing workplace violence, and recently issued updated guidelines tailored for healthcare and social service workers. In addition, the Department of Homeland Security has issued a booklet addressing shooter situations in particular.
“Zero” tolerance should apply to everyone. Employers must enforce policies consistently. For example, if an employer disciplines only certain individuals in categories protected by Title VII, the ADA or other anti-discrimination laws, then there is greater potential for liability. For example, a Louisiana rehabilitation facility’s motion for summary judgment was denied as to the race discrimination claim of an African-American employee based on evidence that she was fired for a physical altercation with a resident while a similarly situated Caucasian worker who struck a resident was not.
With respect to the ADA, an EEOC enforcement guidance concerning individuals with psychiatric disabilities explains that “nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence” and an employer may discipline a disabled individual for violating a workplace standard, even if the misconduct resulted from a disability, so long “it would impose the same discipline on an employee without a disability.”
Consistent enforcement is also at issue when an employer tolerates violence or threats lodged only at a protected group. Recently, a federal court in Oregon found triable issues of fact on an employee’s race-based hostile work environment claim where unwelcome physical “horse play” was directed only at African-Americans. The incidents included being slapped in the back of the head, pinched in the ribs and struck on the shoulder. There was also at least one comment by a coworker that African-American employees need to be “slapped upside the head.”
A final word. When it comes to adopting and enforcing a zero-tolerance violence policy, there are considerations beyond simply providing a safe work environment and avoiding liability. One case I found appalling (and I’m guessing a jury will too) comes to mind: an employee was repeatedly threatened by a coworker, who made numerous threats of violence at the employee and others, smashed a chair, and brought ammunition to the office, which he displayed on his desk after having inscribed the employee’s initials on one of the bullets. The employee notified HR of the bullet incident but was simply told he was not in danger. Though the coworker was fired after the employee contacted police, the employee soon learned the coworker was coming back. Assuming these allegations are true, the employee very understandably began missing work due to extreme anxiety. After he was fired for unexcused absences despite providing medical documentation, he filed FMLA retaliation and interference claims. Unsurprisingly, a federal district court in New York found the claims plausible. This employee’s extreme anxiety is a good example of the damage that can be done not just by violence but by repeated threats. It is not okay to allow this type of behavior to go on.
While Title VII may prohibit discrimination based on race, color, religion, sex, or national origin, it is not “a ‘get out of work free’ card for parents with young children—whether male or female,” declared a federal court in Wisconsin recently in disposing of the sex discrimination claim of an employee fired after missing work to take three of her five children to the dentist. Although the evidence might have allowed a jury to infer she was terminated in part because of her family responsibilities, there was simply nothing to suggest she was fired because she was female, said the court, emphasizing that this “is not a distinction without a difference.”
The employee and mother of five was hired in June 2013 as an educational services coordinator in a county mental health facility. Scheduled to begin orientation on July 8, she was unable to find child care on such short notice so her start date was pushed back a week.
Can’t your husband take them? Although the employee had limited conversations with the director of educational services during her orientation, she claimed they talked about her child care obligations and responsibilities and the director’s frustrations with employees who were not regularly at work. At some point, the employee her she would need to attend weekly future appointments for her children for physical and speech therapy, school, and “birth to three” classes for her newborn twin daughters. In response, the director allegedly made comments such as “Why do you need to do that?” “You can’t do that after work?” “Can’t your husband take them?” and “I understand, but we need you here at work.”
Eleven days after the employee was hired, she was fired when she took a day off to take her children to the dentist. Alleging unlawful sex discrimination in violation of Title VII, she sued.
Sex plus claim. The parties first disputed whether the court should consider her “sex plus” claim that she was discriminated against on the basis of gender plus her family care responsibilities. Observing that the Seventh Circuit has not decided whether it recognizes a sex-plus theory of discrimination that hinges on disparate treatment based on sex in conjunction with another characteristic, the court here, looking to the Second Circuit, determined that the question did not need to be answered because “‘[t]he term ‘sex plus’ or ‘gender plus’ is simply a heuristic…developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.’”
Further, said the court, Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather on the basis of family responsibilities plus gender. Pointing out that “gender plus” claims are really a sub-category of gender discrimination claims, the court explained that a plaintiff must allege discrimination, harassment, or retaliation based on her gender plus her familial status, not merely familial status alone.
Illegal gender stereotyping. After noting that the employee’s claim mutated from a gender-plus claim into a claim of illegal stereotyping, the court observed that the Supreme Court and several circuits have confirmed that the assumption a woman will perform her job less well due to her presumed family obligations is a form of sex stereotyping and that adverse job actions on that basis constitute sex discrimination. Here, the court found no evidence to support a theory of discriminatory stereotyping that led to the employee’s discharge. Not only did the county hire her knowing she was a woman with five young children at home, the record did not reflect that any illegal stereotyping led the county to believe that caring for her children would interfere with her ability to work during scheduled hours.
Key distinction. On the contrary, the employee told the director she was unable to attend the first week of orientation because of childcare issues and informed her shortly after being hired that she would likely need to miss work in the future because of her children. The county’s belief she would miss work as a result of her family responsibilities, thus, was based in reality and not in an illegal gender-based stereotype. This distinction—between illegal stereotyping and actual adverse effects on performance—was key, said the court. The only question before it was whether the employee provided convincing circumstantial evidence that would allow a jury to infer intentional sex discrimination by the decisionmaker and the answer to that question was undeniably no.
Director’s inquiries. While the employee argued that the director’s comments about her child care obligations reflected unlawful sex discrimination, the court again pointed out that her own statements indicated her work schedule might be affected by her childcare duties. In addition, she missed the first week of orientation as a result of childcare duties. Thus, it was unclear how a jury would find that the director’s inquiries had anything to do with sex discrimination. As to her argument that the time between her hire and termination was “suspicious in itself,” the court pointed out that the director hired her with full knowledge of her gender and the fact that she had children at home.
The Access Board is welcoming two new members. Earlier this week, President Obama named Dr. Victor Santiago Pineda of Berkeley and Karen Tamley of Chicago to join the Board.
Dr. Pineda is President of the World Enabled and the Pineda Foundation, positions he has held since founding the organizations in 2003. He previously served as the Chancellor’s Post-Doctoral Fellow for Academic Diversity and as an Adjunct Professor in City and Regional Planning at the University of California (UC), Berkeley. Dr. Pineda was also a Senior Research Fellow at the World Institute on Disability.
Tamley is Commissioner of the Chicago Mayor’s Office for People with Disabilities. As Commissioner, she leads numerous disability policy and compliance initiatives in city infrastructure, transportation, emergency preparedness, housing, schools and technology, and other areas. She also oversees the delivery of independent living services to city residents and represents the city on a number of boards and committees.
“I am honored that these talented individuals have decided to serve our country,” President Obama said in announcing the appointments. “They bring their years of experience and expertise to this Administration, and I look forward to working with them.”
Dr. Pineda and Tamley succeed Board members Nancy Starnes of Sparta, New Jersey and Phillip D. Jenkins of Austin, Texas.
President Obama also announced the reappointment of three current Board members – Regina Blye of Austin, Christopher S. Hart of Boston, and Mathew McCollough, M.P.A. of Washington, D.C. Blye is Executive Director of the Texas State Independent Living Council. Hart is an accessibility consultant who specializes in ADA compliance and Universal Design and who serves as a technical advisor to the Massachusetts Bay Transportation Authority and Boston’s disability community. McCollough heads the District of Columbia Developmental Disabilities Council which promotes independence and equal opportunity for individuals with intellectual and developmental disabilities.
The Access Board is a federal agency that promotes full access for people with disabilities through accessible design and the development of accessibility guidelines and standards. Half of its members are representatives from most of the federal departments, and the other half is comprised of public members appointed by the President.