Workplace Safety: Strong Policies and Practices Concerning Text Messaging

It is becoming common knowledge that texting while driving is clearly dangerous. Studies have shown that texting may inhibit driving reactions more than alcohol. OSHA data shows that, in 2009, crashes caused by distracted drivers killed more than 5,400 people and injured nearly half a million.

Employers should consider developing policies and practices to ensure that employees use text messaging only under the safest circumstances during the work day, including:
  1. Prohibiting texting whiling driving;
  2. Establishing work procedures and rules that do not make it necessary for workers to text while driving in order to carry out their duties;
  3. Setting up clear procedures, times and places for the safe use of texting for communicating with managers, customers, etc.; and
  4. Incorporating safe communications practices into employee orientation and training that should include supervisors and workers.
For help in putting these recommendations into place, contact one of the attorneys in the Employment Services Group at Roetzel & Andress.

Contact: Brian A. Tarian


Court Orders Insurer to Give Employer’s Safety Reports to OSHA

A federal district court ruled on May 2, 2011, that OSHA has the right to subpoena safety audits and other reports prepared by an employer’s insurance carrier. Solis v. Grinnell Mut. Reinsurance Co., No. 3:11-cv-50014 (N.D. Illinois filed 01/20/2011). In July 2010, two teenage employees of Haasbach, LCC were killed when they became engulfed in corn in a grain elevator. At the time of the incident, the workers were “walking down the corn” to make it flow while machinery used for excavating the grain was running. As part of its investigation, OSHA issued a subpoena to the employer’s workers’ compensation insurance carrier, Grinnell Mutual Reinsurance Company, requesting documents concerning safety inspections Grinnell prepared for the employer.

Grinnell objected to the subpoena on the grounds that employers and insurers would be discouraged from conducting voluntary safety inspections if information contained in inspection reports could be used against employers during later OSHA proceedings. The court disagreed and ordered the records be given to OSHA. It noted that OSHA has the authority to require the production of relevant evidence and the ability to issue a subpoena to obtain that evidence. It found that the requested documents, including copies of safety inspection reports, applications for insurance coverage, and correspondence between the employer and the insurer “reasonably relate to the investigation of the incident and question of OSHA jurisdiction.” The court also ordered Grinnell to testify about the documents.

The court’s ruling has important implications for employers. An employer should recognize that OSHA may attempt to obtain safety inspection reports, incident reports, and other safety documentation from the employer and its insurance company. If a report identifies safety issues, the employer should promptly take corrective action and carefully document its response. Corrective action may include abating the hazard, performing additional training and improving safety procedures. Documenting these efforts will help the employer prove to OSHA that it made a good faith effort to address safety concerns.



Supreme Court Ruling: Female Wal-Mart Employees Cannot Proceed with Class Action Suit

In a much anticipated 5-4 opinion, the United States Supreme Court yesterday reversed the decision of the U.S. Court of Appeals for the Ninth Circuit and determined that the female plaintiffs who had sued Wal-Mart, alleging that they had been discriminated against in both pay and promotions over the years, could not bring their case via a class action. That class, which would have numbered 1.5 million potential plaintiffs, represented all women who had worked for Wal-Mart since 1998. (Wal-Mart Stores Inc. v. Dukes, Case No. 10-277)

Justice Scalia noted in his majority opinion that the women "wish to sue about literally millions of employment decisions at once ... . Without some glue holding the alleged reasons for all of those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question 'why was I disfavored?'"

The court made no determination as to whether any plaintiff was the victim of discrimination. Rather, it found that the statistical evidence and the testimony of 120 female workers was not enough to show that the requirements for class certification under Federal Rule 23, which states that there must be questions of law and fact that are common to the entire class, had been satisfied. It is likely that individual plaintiffs and/or smaller classes of women will continue to pursue Wal-Mart, and that similar cases against large employers will be more difficult to bring via a class action unless it can be proven that the alleged discrimination is common to all members of the potential class.



The NLRB and Social Media: And So It Continues

The National Labor Relations Board (NLRB) has already indicated its aggressive stance with respect to employer discipline of employees over social media activities, claiming that various policies and practices with respect to social media are overbroad and violate employees’ Section 7 rights under the National Labor Relations Act. The American Medical Response and Thomson Reuters matters were loud shots across the bow, and the shots keep coming.

In May 2011, the NLRB filed a complaint against Hispanics United of Buffalo, a non-profit organization, claiming that its termination of five employees who criticized workload and staffing conditions on Facebook was an unfair labor practice. A Hispanics United employee, in advance of a meeting with management regarding working conditions, posted a comment to her Facebook page regarding a co-worker’s allegation that employees did not do enough to help the organization’s clients. In response, four other employees posted, defending their job performance and criticizing working conditions. After learning of this activity, Hispanics United fired all five employees, claiming that the posts constituted harassment of the employee who was the subject of the original post.

The NLRB has claimed that the Facebook discussion amongst all five employees constituted protected Section 7 activity because it involved a discussion about the terms and conditions of their employment. A hearing is scheduled for later this month.

This is evidence of a continuing focus of the NLRB and, indeed, that agency has stated that there are social media cases pending in each of its regions.

As a practical matter, what this means is that the law in this area continues to develop rapidly, and employers must tread carefully when implementing social media policies or disciplining employees for social media activities.



Compliance with the Americans with Disabilities Act and the Family & Medical Leave Act

Roetzel Partner, Denise Hasbrook, explains key labor law issues from both the employer's perspective and the employee's perspective. These videos describe important practical steps that management should take in order to comply with the Americans with Disabilities Act (ADA) and the Family & Medical Leave Act (FMLA). Some of the topics discussed include: disability, serious health conditions, accommodation, ADA 2009 amendments, caregiver leave, exigency leave and military leave.

What are employers obligated to do under the Americans with Disabilities Act and the Family & Medical Leave Act?

What is the length of time an employer is bound to provide ADA and FMLA benefits?

Does an employer have to rehire an employee after they take time off for medical reasons (their own or a family member’s)?

Does an employer have an obligation beyond the 12 weeks of FMLA leave?

What is the analytical course you should go through to determine what an employer has to do for an employee under FMLA and ADA?

What changes have been made to the ADA under the ASA Amendments Act?

Contact:  Denise Hasbrook