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Monthly Archives

January 2008

BANNING CAMERA PHONES IN THE WORKPLACE

By Your Employee Matters

More and more companies are restricting employee use of personal cell phone cameras at the office for fear that the ubiquitous camera phones could create legal headaches. Improper photos at work might lead to job-related claims, as well as compromise company trade secrets.

For example, employees could take inappropriate photographs of co-workers without their permission, and the secret photos or videos could amount to sexual harassment or an invasion of privacy. Even if the picture-taking doesn’t create a legal problem, it could still make some employees uncomfortable or embarrass them if photos or videos appear on such Web sites as MySpace or YouTube.

Another worry relates to a soured working relationship. A disgruntled employee might want to embarrass a boss or gather evidence for filing a legal claim. All sorts of photos — from a supervisor getting upset with an employee to overall working conditions — could become fodder in an employment dispute.

For companies with patented products and closely-protected manufacturing processes, any information leaked to a competitor might be extremely damaging. Companies need to protect against cell phone cameras used to copy confidential documents or record other internal information.

What can an employer do? A big first step is to adopt a written policy that controls employee use of cell phone cameras at work. Determine which employees need cameras as part of their jobs. It might be a good idea, for example, if truck drivers carried cameras in case they have to photograph an accident for insurance purposes.

Employees permitted to use camera phones at work should agree that the employer has the right to review all photos and videos on the camera, and can delete any work-related photos. The employer should also prohibit employees from posting work-related photos on the Internet. For those workers who don’t need to use camera phones at work, it’s okay to ban their use outright.

The easiest way to address camera phone use is to update your employee handbook. Once that’s done, follow up with either a company-wide memo or a discussion with employees about why camera phone use is being restricted. The key is enforcement. Don’t develop the policy unless you’re willing to enforce it in every instance that it’s violated.

IRS RAISES MILEAGE RATE FOR 2008

By Your Employee Matters

The standard mileage reimbursement rate for employees who use their own cars for business purposes will increase from 48.5¢ per mile in 2007 to 50.5¢ per mile in 2008, the Internal Revenue Service announced. Each year, the IRS issues standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Employers who use the IRS standard rate to reimburse employees may deduct the reimbursement as a business expense. If employers use the approved rate (or a lower rate), the IRS considers that requirements to substantiate and adequately account for the expense are satisfied without extensive documentation of actual expenses.

As of January 1, 2008, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

  • 50.5¢ per mile for business miles driven
  • 19¢ per mile driven for medical or moving purposes
  • 14¢ per mile driven in service of charitable organizations

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The IRS noted that a taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS), after claiming a Section 179 deduction for that vehicle, for any vehicle used for hire, or for more than four vehicles used simultaneously.

PERSONAL LIABILITY FOR WAGE CLAIMS

By Your Employee Matters

The Secretary of Labor sued Florida-based Hotel Oasis and its president, Lionel Lugo-Rodriguez, for failure to pay minimum wage, to pay training time or meeting time held during non-working hours, and to pay appropriate overtime. The federal district court held Lugo personally liable for the “out-of-pocket” losses of the plaintiffs, as well as for liquidated damages. In agreeing with the trial court, the appellate court stated, “Lugo was not just any employer with some supervisory control over employees. He was president of the corporation and had ultimate control over the company’s day-to-day operations. In particular, it’s undisputed that Lugo was the corporate officer principally in charge of directing employment practices, such as hiring and firing employees, requiring employees to attend meetings without pay, and setting employees’ wages and schedules. He was thus instrumental in ‘causing’ the corporation to violate the FLSA.”

The court also noted that a corporate officer may be held liable even if they have no corporate ownership interest. To read the entire case, click here.

GOOGLE THIS!

By Your Employee Matters

The California Appellate Court recently let a case proceed against Google for age discrimination. Google fired the 54-year-old plaintiff, alleging in part that he “was not a cultural fit.” He was also told that his ideas were “ancient,” “too old to matter,” “obsolete,” and that he was “lethargic,” “sluggish,” and “lacked urgency.” In addition, the plaintiff’s expert showed a statistical disparity when it came to performance ratings and bonus payments.

Whether he succeeds in his case will be up to a jury. If it does, the verdict would be high. The largest average verdict is for a white male over 40. Either way, the case carries these lessons for all employers.

Lessons learned:

  1. Use “age-neutral” language where possible.
  2. Don’t hire cultural misfits. The risk on the termination side vastly outweighs any benefits on the hiring side.
  3. Know your statistics. Don’t let an outsider clue you in to disparate impact claims.
  4. Keep a consistent story. Google’s reason for the termination changed over time, undermining its credibility with the court.

To review the case, click here.

ZERO TOLERANCE

By Your Employee Matters

In light of well-publicized events years ago, the U.S. Postal Service adopted a zero-tolerance violence policy. A recent case tested the limits of that policy. Mr. Jones had been dating and going to work with a fellow postal worker, Ms. Ortiz, for many years. Eventually they broke up, but continued to share rides to work. One day, she chose not to pick him up for work — which upset him. Depending on whose story you believe, Jones came to work upset and intended to let Ms. Ortiz know how upset he was. According to the court, “There was little doubt that Jones’s actions, as an initial matter, fell within the scope of the zero tolerance policy.”

The arbitrator in the underlying case explained, “Despite his denials of having cursed the involved co-worker, called her a bitch, or even to have forced her arm from his face, and/or pushed her against a mail container, his admissions of having entered her work area in a ‘confrontational posture’, having ‘scolded her’ and having ‘touched her’ in doing so, had been sufficient ‘misconduct’ for disciplined purposes.” However, the arbitrator felt that USPS went too far and that a 30-day suspension would have been enough — so Jones was reinstated with back pay.

Not satisfied, Jones then sued USPS, arguing that he was retaliated against under the ADA and Rehabilitation Acts. He alleged that his history of back problems caused him to be accommodated by doing a “torn mail handler” job and that the USPS was pressuring him to give unreasonable medical proof that it was necessary for him to stay in that position.

The court entertained the plaintiff’s argument that he was treated differently under similar circumstances than other employees simply because of his need for disability accommodation, and that his termination for the “violent act” was really a pretext. However, the court eventually ruled that since Jones could not isolate the disability discrimination as the sole reason for his termination that his ADA claim failed.

This case carries three lessons:

  1. It’s not a bad idea to have a zero-tolerance workplace violence policy.
  2. Any time you fail to follow any policy consistently, you’ll open yourself up to discrimination-type arguments.
  3. Because a plaintiff will always argue that the proffered reason for termination is pretext or retaliation you’d better have documentation to back it up.

To read the case, click here.

FUNNY TO YOU, BUT …

By Your Employee Matters

There’s an axiom among lawyers that “bad cases make for bad law.” What follows is one of those cases.

The plaintiff, Miguel Arrieta-Colon, sued Wal-Mart and a handful of his supervisors and managers because he was ridiculed after receiving a penile implant used to correct a sexual dysfunction. Apparently the implant itself left the plaintiff with the appearance of a semi-erection.

The plaintiff alleged that he was subject to a hostile work environment because he was constantly harassed and ridiculed by both supervisors and co-workers and, despite his complaints, no corrective actions were taken. The jury eventually awarded $76,000 in compensatory damages and $160,000 in punitive damages because Arrieta-Colon had to quit in light of the harassment.

This decision raises three important points:

  1. The defense attorneys blew the opportunity to argue whether or not the plaintiff had an actual disability or met the “regarded as” test under the ADA. Because the attorneys failed to use this argument on appeal the court could not consider it.
  2. The plaintiff was able to move forward with a constructive discharge case because Wal-Mart failed to take any action to prevent his harassment.
  3. Punitive damages were awarded against Wal-Mart in large part because its human resource officer took the position that “boys will be boys” and didn’t interfere with the actions taken by the store’s management.

You can read the case by clicking here.

EDITOR’S COLUMN: WHOSE JOB IS IT ANYWAY?

By Your Employee Matters

The other day, I suffered from a retail experience that we’ve all encountered. I was at the counter ready to check out and there were two management types behind the counter “busy doing things,” as they were trying to find another clerk to write me up. It literally took a PA announcement and then another minute or so to get someone behind the counter.

I don’t know about you, but if I were the owner of that store and watched this going on, I would be horrified. The most important thing to that store’s survival — its customer, willing to spend money now — was completely ignored by two able-bodied employees. I don’t care what they were doing. I don’t care what their title was. They should have stopped and gone to the counter. Everything else that business does is secondary. As you can imagine, I have no desire to ever shop at that store again.

As Dr. Deming was fond of saying, “Management tends to recycle ignorance.” This experience is a classic example of what he meant. How can employees possibly know how to do better when management doesn’t know to do better?

Unfortunately, much of the same type of thing goes on in HR. Instead of focusing on the strength of the personnel relationship, we build up a lot of administration around it — our own little bureaucracies — with the same horrible consequences. Do your HR managers focus on their “busyness” at the expense of what’s really important? Take a look at this month’s Form of the Month: The 12-Question Survey. I’d be curious to see how your HR person would answer it.

MANAGING SAFETY FOR AN AGING WORKFORCE

By Risk Management Bulletin

Nearly one of four people aged 64 to 75 remain in the workforce — and the number is projected to skyrocket as the Baby Boomers reach retirement age, but want to stay active. The good news: Older workers have a lower injury rate. The bad news: Their injuries tend to be more serious and require more time away from work.

Senior workers have specific safety issues. Their retention is often shorter, they’re more easily distracted (for example, by noise in their environment) have a slower reaction time, declining vision and hearing, and a poorer sense of balance. What’s more, they sometimes deny their deteriorating abilities, which can lead them to try to work beyond their new limits.

These physical limitations lead to specific types of injuries for older workers:

  • Falls caused by poor balance, slowed reaction time, visual problems, or distractions
  • Sprains and strains from loss of strength, endurance, and flexibility
  • Cardiopulmonary overexertion in heat or cold, at heights, using respirators, or in confined spaces
  • Health or disease-related illnesses, such as diabetes, cancer, osteoporosis, coronary artery disease, or hypertension
  • Accumulation injuries after years of doing the same task, e.g., truck drivers who experience loss of hearing in the left ear from road noise with their cab window open

Look for these indicators that your older workers might need accommodations:

  • Physical signs, such as fatigue or tripping
  • Psychological or emotional signs, such as loss of patience or irritability
  • Feedback from supervisors or co-workers on declining performance
  • Numbers and patterns of sick days
  • History of minor injuries or near misses

You can help protect senior workers by

  • Finding ways for them to work smarter, not harder
  • Decrease activities that require exertion, such as in working heat or cold or climbing ladders
  • Adjusting work areas, such as installing better lighting, reducing noise, removing obstacles, and decreasing the need to bend or stoop
  • Redefine standards of productivity
  • Learning your workers’ limitations, perhaps by conducting annual hearing or vision tests

Make sure that safety culture becomes an institutional value. For example, when co-worker feedback indicates that an older worker is having trouble, don’t fire the person. This will discourage honest input from employees who feel responsible for their co-worker’s loss of employment.

Other ways to help keep valuable older employees on the job include:

  • Wellness programs
  • Flexible schedules
  • Extra unpaid vacation
  • More medical leave than the Family and Medical Leave Act (FMLA) requires
  • Allowing less than full-time work with full-time benefits
  • Offering long weekends after heavy workweeks
  • Giving more positive feedback than to younger workers
  • Setting more specific goals
  • Conducting ageism training for supervisors and co-workers to make them aware of the different working styles across the generations

FIVE WAYS TO STAY OFF OSHA’S HIT LIST

By Risk Management Bulletin

Be warned! You could be on OSHA’s inspection and enforcement “hit list.” The agency will soon announce its 2008 Site-Specific Targeting (SST) plan that will focus on unannounced comprehensive of inspections high-hazard worksites in the 29 states covered by OSHA rules — it does not include companies targeted for inspection by state agencies in the 21 states that administer their own safety and health programs.

Here’s a five-step program to evaluate your chances of getting a visit from OSHA:

Step 1. Check your own injury and accident rates. Take a close look at your organization. Review your accident statistics, injury and illness logs, and incident rates, particularly your Days Away, Restricted, and Transferred (DART) rate, and Days Away from Work Injury and Illness (DAFWII) rate. You can determine your DART and DAFWII rates from the OSHA Form 300 log and Form 300A Summary.

Step 2. Look at OSHA’s trends in citations and violations for your industry. Go to the OSHA Website and review statistics about trends in citations and violations for your industry or for all workplaces. You can look at the number of citations for a particular regulation and, in some cases, right down to a paragraph within a regulation. To browse through the regulations that cover your industry, go here.

Step 3. Compare your incidence rates with those of your competitors. You can find the history of inspections of your competitors on the OSHA site here. The database also contains the list of citations by regulation number. Don’t forget to look at the General Duty Clause (GDC) citations. OSHA uses the GDC to cite any activity creating a hazard that’s not covered under a specific regulation, such as many activities that cause musculoskeletal disorder hazards.

Step 4. Determine whether you’re making the news. OSHA inspectors respond to news stories about an organization, even when the news is positive. In one case, a company was highlighted in a news story for the benefits it was providing to the community, but the images on TV showed some construction activity in the background that looked suspicious to someone who called OSHA. An inspector went out to the site and found violations.

If a news agency makes inquiries and wants information about you, carefully screen any comments or photographs given to it. Even a positive news story can inadvertently sting you when it comes to workplace safety and health.

Also, track news stories in your industry or geographical area that relate to workplace safety, especially stories about accidents and penalties. They can alert you to problems at your own facility and give you time to fix them before OSHA finds you.

Step 5. Monitor what’s new with OSHA. Keep an eye on OSHA’s Special Emphasis program for targeting certain high-hazard industries.

ARE YOUR EMPLOYEES PREPARED FOR AN EMERGENCY EVACUATION?

By Risk Management Bulletin

Don’t wait for an emergency to find out how prepared your people are. Everyone in your organization, from the CEO down to the newest, lowest-level employee, needs to know how to act quickly and effectively in the event of a workplace emergency such as a fire, chemical spill, or other incident that requires the evacuation of your facility. Swift action can save lives and minimize injuries. But the question is: Are your workers prepared? Would each one of your employees know exactly what to do and where to go if an emergency occurred and your alarm system sounded right this minute?

OSHA requires you to have a plan for emergency evacuations. For example, you must: (1) Have an alarm system to warn employees in the event of a workplace emergency; (2) Mark emergency exits clearly and make sure there is easy, unobstructed access to these exits at all times; (3) Post emergency phone numbers near phones and in other conspicuous locations around your department; (4) Have fire-fighting equipment such as fire extinguishers and sprinkler systems; and (5) Train employees to understand your emergency plan and respond to emergencies in ways that will minimize injuries and destruction of property.

And if you have hazardous waste at your facility, the federal HAZWOPER regulations require you to have a plan for training employees to handle emergencies involving releases of hazardous substances.

Planning and practice are the secret of safe evacuations. When you plan for the safe evacuation of employees, keep these steps in mind:

  • Post floor plans indicating evacuation routes and emergency exits around your department in prominent places where employees will be sure to see them.
  • Assign each employee a primary and alternate evacuation route from your department, and make sure that new employees get assigned an evacuation route during orientation, which should take place during their first few days on the job.
  • Encourage employees to familiarize themselves with the evacuation routes from other areas of the facility where they go frequently, such as restrooms and break rooms.
  • Develop plans for sheltering in place or a partial evacuation to safe areas of your facility as an alternative to a total evacuation, and train employees in these procedures.
  • Talk to employees about appropriate behavior during an emergency evacuation (for example, remaining calm, moving quickly without running toward emergency exits, alerting others of the need to evacuate, and helping as directed by emergency response personnel).
  • Plan to evacuate disabled employees and employees who might be injured during the emergency.
  • Have a way to account for employees once they’ve gotten out of the building.

Remember, practice makes perfect — and keeps you, and your workers safe. Make sure all employees (including the bosses) participate in regular emergency drills and simulations to give everyone the opportunity for practicing evacuation and other emergency procedures.

For guidelines on keeping your office safe, please contact our risk management professionals.