California Senate Approves Bill to Provide Equal Employment Benefits for Same-Sex Spouses

Last week, the California Senate approved a bill (S.B.117) that would prevent the state government from entering into contracts worth more than $100,000 with entities that do not provide equal benefits to an employee’s same sex spouse. The California Employment Lawyers Association, the Service Employees International Union Local 1000, which represents state workers, and several other labor unions also support the measure.

The idea is not new to California. In fact, it is similar to ordinances already adopted in other cities including San Francisco, Los Angeles, Sacramento and Oakland, according to Equality California. If signed into law, the bill would apply to couples married in 2008 when same-sex marriage was legal in California, as well as to same-sex marriages that occurred in other states.

“Providing the same benefits to an employee with a domestic partner, or same-sex or opposite-sex spouse ensures that workers receive equal pay for equal work,” said Senator Christine Kehoe, sponsor of the bill.

The contract requirements of the measure can be waived in the case of an emergency where no qualifying contractor is available to respond to the emergency. Further, if there is a difference in the cost of providing certain benefits to a spouse, the contractor can require the employee to pay any additional cost.

The bill is now on the desk of Governor Jerry Brown, who has 12 days to sign the measure into law or veto the bill.


OSHA Strengthens Whistleblower Protection Program

The Occupational Safety and Health Administration (OSHA) announced on August 1, 2011 that it is implementing measures to strengthen its Whistleblower Protection Program.
Whistleblower protection laws prohibit employers from retaliating against employees who report violations of workplace safety. Employees have the right to ask OSHA to inspect their employer’s workplace whenever they believe there is a serious safety hazard or they believe that their employer is not following OSHA safety rules. If the employer learns the identity of the employee who filed the complaint, the employer may not retaliate or discriminate against the employee in any way. For example, the whistleblowing employee cannot be fired, transferred, denied a raise, have his or her hours reduced, or be punished in any way for filing a complaint with OSHA.
OSHA is overhauling the whistleblower program in response to an audit conducted by the Government Accountability Office (GOA) in 2009 and 2010. The GOA found problems related to transparency and accountability, training for investigators and managers, and internal communications. OSHA also conducted an internal audit that focused on program structures, operational procedures, investigative processes, budget and equipment issues.
Significant changes to OSHA’s whistleblower program include:
  • Restructuring –  The whistleblower program will report directly to the Assistant Secretary of Labor. Beginning with its fiscal 2012 budget, OSHA established a separate line item for the whistleblower program to better track its activities. OSHA also added 25 new investigators.
  • Training – OSHA will hold a national whistleblower training conference in September. The agency will also offer several other investigator training events, and will attempt to ensure that all investigators and supervisors receive mandatory training courses by the end of the year.
  • Program Policy –  OSHA will issue a new edition of the Whistleblower Investigations Manual that updates current procedures.
  • Internal Systems – OSHA has modified the data collection system and strengthened the audit program to ensure that complaints are handled on a timely basis.
OSHA retaliation claims have significantly increased in the past year in both union and non-union facilities. The danger for an employer is that even where the underlying safety and health complaint has no merit, the employer can still be held liable for retaliation against the whistleblowing employee. Roetzel & Andress attorneys have experience handling retaliation claims and have successfully resolved difficult retaliation cases.



Criminalizing Facebook?

Social media has found itself in a particularly unwelcome spotlight recently. The riots which shook London in the last few weeks are a prime example, as rioters have utilized Facebook and other social media tools to “organize.” In Missouri, legislators have passed legislation prohibiting some types of Facebook “friending” between teachers and students. And in Cleveland, Mayor Frank Jackson vetoed an ordinance which would have criminalized some uses of Facebook, Twitter, and other forms of social media to organize “flash mobs” (large gatherings of people, most often teenagers, organized via social media) within the city limits.
Of course, such efforts beg the question of what the true problem is – Facebook or those using it to commit crime or engage in improper behavior? Is Facebook any more of a criminal tool than a cell phone or e-mail? This type of attention implicitly acknowledges the effectiveness of Facebook and other forms of social media in spreading the word, for good or for bad. Should the baby be thrown out with the bathwater as legislators struggle to maintain order on their streets or in their schools?  Of course, the First Amendment – which some seem to forget applies to social media communication as well – will have a significant impact on such legislation, and legislation attempting to criminalize the use of social media may go the way of other notable efforts.



A Quick Look at Workers' Compensation Fraud

In all states, workers' compensation fraud is a common practice and a growing threat to the financial health of a state's economy and its business communities. Per Ohio Bureau of Workers' Compensation (BWC) reports, national industry studies estimate 5 percent to 20 percent of all workers’ compensation benefits paid are fraudulent. In Ohio alone, the BWC pays out $80 to $320 million in fraudulent medical and compensation payments each year. Needless to say, the resulting effect can be very costly for most employers and even disastrous for some. This is all the more reason for companies to be ever vigilant and to scrutinize their workers' compensation claims, even the most minor, on a regular basis.

In combating fraud, there are common, basic red flag indicators that employers should keep an eye out for:  the injured worker files a claim and then can no longer be reached for further information; tips from co-workers; there are no witnesses to the alleged accident; there are cross-outs, white-outs and erasures on reporting and medical documentation; the date, time and/or place of accident are unknown; and the injured worker cannot recall specific details of the alleged injury.

The most common fraudulent activity is the injured worker who works while also collecting lost time compensation benefits. Thankfully, some injured workers make their work activity obvious by showing up to hearings with fresh calluses on their hands or grease under their fingernails. Others are more brazen and "self-document" their activities with postings on social media, such as Facebook and Twitter. It is this kind of behavior which makes fraud investigations a little easier.

Some employers, though, also perpetrate fraudulent schemes in order to gain an edge. In Florida, uninsured contractors are preying on the construction and subcontracting industry. According to news reports, "shell" or fake companies are set up to obtain minimal workers' compensation insurance. Uninsured contractors then pay a fee to use the shell policy, enabling them to avoid purchasing required workers' compensation insurance. The end result is honest employers being outbid on construction projects by those who skirt premium requirements.   

The punishment for fraud can be quite severe, as a Warren County, Ohio, woman recently found out. After a BWC investigation, she pled guilty to a felony count of workers' compensation fraud related to her work as a bus driver. It was documented that she was working while receiving disability payments for a workplace injury she sustained while working as a driving instructor. The woman was sentenced to five years of community control and was ordered to pay restitution in the amount of $11,396.10, plus court costs and investigative costs totaling $2,000.



The Americans with Disabilities Act: Two Decades Later (Part 20): How Does GINA Overlap with the ADAAA?

In the final part of the 20-part series, The Americans with Disabilities Act: Two Decades Later, attorney Denise Hasbrook explains how GINA (the Genetic Information and Non-Discrimination Act) overlaps with the ADAAA.

How does GINA overlap with the ADAAA?


The Americans with Disabilities Act: Two Decades Later (Part 19): What is the Genetic Information and Non-Discrimination Act (GINA)?

In Part 19 of the 20-part series, The Americans with Disabilities Act: Two Decades Later, attorney Denise Hasbrook explains GINA (the Genetic Information and Non-Discrimination Act).

What is the Genetic Information and Non-Discrimination Act (GINA)?


The Americans with Disabilities Act: Two Decades Later (Part 18): Do Minor and Transitory Disabilities Fall under the “Regarded as” Disabled Provision of the ADAAA?

In Part 18 of the 20-part series, The Americans with Disabilities Act: Two Decades Later, attorney Denise Hasbrook examines whether minor and transitory disabilities fall under the “regarded as” disabled provision of the ADAAA.

Do minor and transitory disabilities fall under the “regarded as” disabled provision of the ADAAA?


The Americans with Disabilities Act: Two Decades Later (Part 17): Is an Individual Who is Incorrectly Perceived to be Disabled by an Employer Nevertheless Protected under the ADAAA?

In Part 17 of the 20-part series, The Americans with Disabilities Act: Two Decades Later, attorney Denise Hasbrook addresses whether an individual incorrectly perceived by an employer to be disabled is protected under the ADAAA.

Is an individual who is incorrectly perceived to be disabled by an employer nevertheless protected under the ADAAA?