A POTPOURRI OF EMPLOYER LEGAL AND SAFETY ISSUES

1. A POTPOURRI OF EMPLOYER LEGAL AND SAFETY ISSUES Black Swamp Safety Council June 16, 2011 Cheryl F. Wolff Anastasia K. Hanson Spengler Nathanson P.L.L.

2. Presenters Cheryl F. Wolff chairs Spengler Nathanson P.L.L.’s Labor, Education and Public Law Service Group, and advises clients on issues such as hiring, discipline and discharge, employment policies, and compliance with federal and state employment laws. She defends employers in employment discrimination charges and lawsuits, wrongful discharge lawsuits, grievance arbitrations, and before the National Labor Relations Board and State Employment Relations Board. Cherie is a graduate of Miami University (cum laude, 1974) and the Ohio State University College of Law (with honors, 1979).  She is a frequent speaker on a variety of employment issues.

3. Presenters Before becoming a lawyer, Anastasia K. Hanson ("Stasia") spent fifteen years working for regional corporations in human resources, workers compensation, and insurance.  Stasia brings this business perspective to her practice as an employment lawyer and focuses on litigation avoidance and employer defense.  Stasia advises employers on compliance with FMLA, ADA, GINA, and Title VII and represents employers at workers compensation hearings, unemployment hearings and in state and federal court litigation.  She is a 2000 graduate of the University of Toledo, College of Law, Magna Cum Laude, Order of the Coif. Stasia is a partner with Spengler Nathanson P.L.L. and presents on topics of interest to employers. 

4. Guns in the Workplace Ohio concealed carry law effective in 2004 allows Ohio residents to be licensed to carry concealed handguns, except in certain places.

5. Can’t take handgun into: • Buildings owned by state or political subdivision • Police stations, sheriffs’ offices, state highway patrol stations, correctional institutions, courthouses • School buildings, school premises, school activities, school buses • Churches and other places of worship (unless the place of worship permits) • Child day-care centers and type A, B, and C family day-care homes • State institutions for the mentally ill and for the developmentally disabled

6. Can’t take handgun into: • Rooms or open air arenas in which liquor is being dispensed in premises for which a D liquor permit has been issued (with certain exceptions, see R.C. 2923.121) • Premises owned or leased by any public or private college, university, or other institution of higher education, unless the handgun is in a locked motor vehicle or the licensee is in the immediate process of placing the handgun in a locked motor vehicle • Anyplace where federal law prohibits the carrying of handguns

7. Ohio private employerspermitted to restrict firearms “Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer . . . concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.” R.C. 2923.126(C)(1)

8. Immunity “A private employer is immune from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to the private employer's decision to permit a licensee to bring, or prohibit a licensee from bringing, a handgun onto the premises or property of the private employer.” R.C. 2923.126(C)(2)(a)

9. Signs • Property owner may post sign in conspicuous location on premises prohibiting persons from carrying firearms or concealed firearms on or onto those premises. R.C. 2923.126(C)(3)(a) • Exception for landlord and tenant with rental agreement for residential premises. R.C. 2923.126(C)(3)(b)

10. Suggested SecurityInspections Policies • Desks, lockers, and other storage devices may be provided for the convenience of employees but remain sole property of employer • Therefore, they, and any articles found within them, can be inspected by any employer representative at any time, with or without prior notice • To discourage theft and other policy violations, employer may inspect persons entering and/or leaving the premises and any packages or other belongings including but not limited to tool or lunch boxes and automobiles

11. Workplace Drug & Alcohol Testing Federal Survey 2008: 75% of all illicit drug users 80% of adult heavy alcohol users are employed full-time.

12. Construction industry – high for both alcohol and illicit drug use. • Construction industry – about 15% heavy alcohol users; 17% illicit drug users. • Accommodations/food service – 17% illicit drug users.

13. Cost of drug/alcohol use to employers $75-$100 billion/year; • 10 more likely to miss work; • 5 times more likely to file a workers comp. claim; • 3.6 times more likely to be involved in a work-related accident; and • 33% less productive than nonusers.

14. Establishing a Program • Develop a comprehensive written policy. • Decide on testing scope: baseline, post-offer, post-accident, random, and reasonable suspicion. • Decide on testing protocol/identify vendor. • Train supervisors and employees. • Select response to positive tests.

15. Legal Issues • Compliance with federal laws – is your workplace covered by: • U.S. Dept. of Transportation • U.S. Dept. of Health/Human Services – drug testing guidelines for federal employees; • Drug-Free Workplace Act (more than $25,000 in business w/ federal govt. – does not require drug testing)

16. Compliance w/ federal regulations trumps other considerations. • Ex.: state medical marijuana laws. • Employer must comply with federal rules.

17. Americans w/ Disabilities Act • May prohibit drug/alcohol use. • May test. • May discharge for illegal drug use. • May discharge for use of alcohol. • May require all employees to meet same performance standards.

18. But, • An alcoholic is probably an "individual with a disability" under the ADA as amended in 2008. • Must consider whether leave is a proper accommodation for the disability. • Casual illegal drug users are “not disabled,” but individuals with a record of addiction, or who are erroneously perceived as being addicts, may be “disabled” and subject to accomodation.

19. Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction. • Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.)

20. Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation. • Source: http://www.dol.gov/asp/programs/drugs/workingpartners/regs/ada.asp

21. Family and Medical Leave Act • Can terminate for substance abuse if have a nondiscriminatory termination policy for substance abuse (even if leave would be used for substance abuse treatment). • In the absence of such a policy, alcoholism or substance abuse may be a “serious health condition” and leave for treatment may be required.

22. Genetic Information Nondiscrimination Act (“GINA”) • Regulates an employer’s access to “genetic information” of employees. • Drug and alcohol test results are not genetic information and are not regulated by GINA.

23. Collective Bargaining Agreements • Drug and alcohol testing is a mandatory subject of bargaining when employees are not in “safety sensitive” positions requiring action by the employer in the interest of public safety or in furtherance of the employer's overall mission; in those instances where the employer demonstrates an overriding management objective, the decision itself need not be bargained but only the affected wages, hours, terms and conditions of employment. • In re Canton, SERB 94-011 (6-29-94). • Best practice: involve the union in response to a drug or alcohol situation.

24. Title VII Considerations • Prohibits discrimination based on race, color, sex, religion, national origin. • ADA – disability • ADEA – age • State and local laws – may add conditions. • Implement policy consistently to avoid claims of discrimination.

25. Other Potential Claims • Defamation arising from “publicized” drug tests results. • Intentional infliction of emotional distress. • Invasion of privacy – arising from drug testing protocols. • U.S. Sup. Ct. – drug testing does not violate 4th Amend. search and seizure rights.

26. Whistleblowing and Other Protected Employee Activity Federal and state statutes and case law prohibit discharges or other adverse employment actions which result from certain employee activities.

27. Protected Activities • Exercising rights or making complaints under federal laws such as Family and Medical Leave Act, National Labor Relations Act, Employee Retirement Income Security Act, Fair Labor Standards Act, Uniformed Services Employment and Reemployment Rights Act, Immigration Reform and Control Act, Occupational Safety and Health Act

28. More Protected Activities • Filing charge, participating in investigation, or opposing employment practice made unlawful by state or federal anti-discrimination laws • Filing workers compensation claim • Activities protected by Ohio public policy (court-created exceptions to employment-at-will), such as: • Consulting attorney • Testifying truthfully against employer • Reporting supervisor about to drive intoxicated

29. Ohio Whistleblower Law(R.C. 4113.52)

30. Situations Covered • Employee becomes aware, in course of employment, of violation of governmental statute, ordinance or regulation that employee's employer has authority to correct • Or of violation by fellow employee of governmental statute, ordinance or regulation or employer work rule or policy

31. Situations Covered - continued • And employee reasonably believes violation is criminal offense likely to cause imminent risk of • Physical harm to persons • Hazard to public health or safety • Felony, or • Improper solicitation for campaign contribution

32. Steps Employee Must Take to Gain Whistleblower Law’s Protection • Orally notify supervisor or other responsible employer officer of the violation • And subsequently file with that supervisor or officer a written report identifying and describing the violation

33. Employer Responsibilities • Must notify employee who makes such a report of any employer effort to correct alleged violation or hazard, or of absence of the alleged violation or hazard • This written notice must be within 24 hours after employee’s oral notice or employer’s receipt of written report, or by close of business on next regular business day after day on which oral notice was made or report was received, whichever is later

34. For a violation the employer has authority to correct: • If employer does not correct or make reasonable, good faith effort to correct violation within 24 hours after oral notification or receipt of report, whichever is earlier, then employee may file written report of violation with prosecutor, peace officer, or other appropriate public official or agency with regulatory authority

35. Ohio Whistleblower Law:Special Situations • Employee becomes aware, in course of employment, of criminal violation of Ohio laws on air pollution control, solid and hazardous waste, safe drinking water, or water pollution control • Employee directly may notify any appropriate public official or agency with regulatory authority over employer and industry, trade, or business in which employer is engaged

36. Retaliation AgainstWhistleblower Prohibited • Employer must not take any disciplinary or retaliatory action against an employee for making any report described above • Or as result of employee's having made inquiry or taken other action to ensure accuracy of information reported in either situation

37. Protection for Employers • Employee must make reasonable, good faith effort to determine accuracy of any information reported • Employee who makes report without making such an effort may be subject to disciplinary action

38. Civil Whistleblower Action • Employee may bring civil action against employer that disciplines or retaliates for employee’s making protected report • Relief available: Injunction; reinstatement; back wages, benefits and rights; attorney fees

39. Safety, Discipline, and Workers Compensation Some Legal Issues

40. Employees may be disciplined for work-related accidents in which they are injured. • If a proper ground work has been laid, an employee may be terminated. • Issue: can employer show the termination was motivated by safety violations not the filing of the workers compensation claim?

41. R.C. 4123.90 prohibits retaliation by an employer against an employee for filing a workers compensation claim. • The employee must show that: 1) she was injured on the job; 2) she filed a workers comp. claim; and 3) there was a casual connection between filing the claim and her termination.

42. If the employee can show those three things, the burden shifts to the employer to show the reason for the termination was not a pretext.

43. Cunningham v. The Kroger Co. (1st Dist.), 2006-Ohio-5900. • Worker employed for four years as a fork lift operator. • Received hands-on and computer-aided training. • Received written safety materials. • Attended daily safety meetings.

44. Two months before the injury accident, she backed into another forklift. • Disciplined (3-day suspension) for not following safety rule – honk horn/look over shoulder. • Kroger used a Dok-Lok system to hold trucks to loading dock. • Day of accident drove onto truck and felt a dip but did not investigate.

45. Drove back and truck separated from dock and operator fell to ground. • She was awarded TT. • Kroger terminated her for the second safety violation. • She filed suit under the no retaliation statute.

46. Court said: no evidence firing related to filing WC claim. • Kroger would have fired her under its safety program whether or not she filed a claim.

47. But, • Employee receives TT unless employer can show injury was the result of an intentional act sufficient to constitute abandonment of employment.

48. This presentation and outline aremeant to assist in a general understanding of the law and arenot intended as legal advice.Questions regarding specificissues should be directedto appropriate counsel.

49. Susan Nelson419-252-6217 snelson@snlaw.com Cheryl Wolff419-252-6238 cwolff@snlaw.com QUESTIONS?Contact Spengler Nathanson P.L.L.www.snlaw.com 419-241-2201 Anastasia Hanson419-252-6250 ahanson@snlaw.com