In This Issue

• Labor and Employee Relations Seminar
• Newsletter Updates —By E-Mail
• OSHA's New Ergonomics Rule Will Have Widespread Impact
• Warning —Employees Have Little-Known "Union-Like" Rights
  1. Disciplinary Interviews
  2. Rules Prohibiting Discussion of Wages
• Miscellaneous
  1. Beware: Labor Unrest and OSHA
  2. Paternalistic Concerns for Employee Safety Are Misplaced
  3. FMLA Notices Required
  4. Wrongful Discharge in Violation of Public Policy — Beware if You Are in Franklin County
  5. Another Source of Potential Liability — Cell Phones
  6. Workplace Posters

Eighth Annual Labor and Employee Relations Seminar: February 27, 2001

Kegler, Brown, Hill & Ritter will sponsor its eighth annual Labor and Employment Law Seminar on February 27, 2001, in Columbus, Ohio. The seminar, entitled "Selected Issues in Managing Labor and Employee Relations in the Workplace: The Employer's Perspective," will feature presentations on a wide variety of employment related topics and developments.

The speakers will also be available for a question and answer session both during and following the seminar. In addition, detailed written materials on each topic will be provided to each person attending the seminar. Click here for the seminar reservation form or contact Molly Morgan at Kegler, Brown, Hill & Ritter at (614) 462-5400.

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Newsletter Updates — By E-Mail

We are pleased to announce that Kegler, Brown, Hill & Ritter will be providing electronic mail Labor & Employment Law updates to our clients, friends, and colleagues. Beginning in mid-September 2000, Kegler, Brown, Hill & Ritter will be forwarding, via e-mail, a monthly update discussing a current issue of Labor & Employment Law. If you are interested in receiving this monthly e-mail, please use our Publications Subscription Form to sign-up.

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OSHA'S New Ergonomics Rule Will Have Widespread Impact

by Tom Metzger

On November 14, 2000, the Occupational Safety and Health Administration issued its final standards on ergonomics in the workplace. All employers, regardless of how many employees they have, will feel the impact of the new regulations. Consequently, every employer will need to become familiar with the rules, particularly as the rules interact with the Americans with Disabilities Act and worker's compensation.

Under OSHA's new standard, employers face several new obligations. At the outset, all employers will be required to provide workers with basic information regarding work-related musculoskeletal disorders. Similar to the type of notice requirements that are used under the Family and Medical Leave Act and other federal regulations, employers will be required to provide information regarding signs of common injuries, how to report these injuries in the workplace, and a summary of the OSHA standard.

While these notification requirements are rather straightforward, the rules regarding actual implementation of the new standard prove to be rather convoluted. For example, if a musculoskeletal injury is reported (and if the injury requires time away from work or has symptoms that last for at least seven days) then the employer will have to determine whether the new standard is "triggered." What does this mean? As OSHA explains it, an injury "triggers" the new standard if the employee¹s job includes exposure to one or more risk factors that OSHA has listed on a lengthy, two-page screening checklist. The factors include such non-specific items as force, vibration, repetition, awkward postures, and contact stress.

Once the new standard is "triggered," employers will be required to take several steps. Specifically, if a work-related repetitive stress injury (such as an injury that results from continuous typing) is either reported, or if such a hazard is known to exist, then the employer will be required to either adopt a comprehensive ergonomics program, or it will be required to implement an effective "quick fix" to alleviate the problem for the particular job. However, a "quick fix" may only be used if no more than one injury is reported in a job and if no more than two injuries are reported in the entire workplace within 18 months. As contemplated under the standard, a "quick fix" might include providing ergonomic chairs or tools, or adjusting the height of a workstation.

If the "quick fix" is not effective, the employer will be required to implement the comprehensive program. In particular, the standard provides that if another work-related musculoskeletal disorder occurs in the same job within three years, then the employer is required to go to a comprehensive program. The comprehensive program is indeed "comprehensive": it incorporates reporting requirements, mandatory and periodic reviews of workplace hazards, record keeping, and training for employees who are involved in the program.

The standard does not stop there. In addition to requiring employers to provide an injured worker with a free medical evaluation, an employer must pay 100% of the employee's net compensation and benefits if the employee is on light duty, and 90% of compensation and 100% of benefits for those employees who are taking time off of work to recover from an ergonomics-related injury. The standard suggests that these compensation requirements may be met by allowing the employee to use accrued sick time or similar paid leave. In addition, the salary and benefits payments could be offset when worker¹s compensation benefits kick in. These benefits must continue until the employee can safely return to work, a health care professional determines that the employee can never return to work, or 90 days have passed, whichever comes first. These requirements regarding compensation and benefits may have a substantial impact on worker's compensation administration.

There is no doubt that there will be a substantial amount of discussion and analysis on this new standard in the next few months ­ and we will provide you with updates here and by electronic mail in our new E-mployment Alerts. And although the new standard technically does not go into effect until January 16, 2001, and employers will not be required to fully implement its provisions until October 14, 2001, employers should begin to review their own workplace practices and become familiar with the requirements contained in the new standard. This is particularly true for employers who have experienced many injuries in the past, and who have not already implemented an ergonomics program. (Notably, construction, maritime, agricultural, and railroad employers are exempt from the standard). If you would like to review the new standard, it is on OSHA's website at www.osha.gov.

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Warning — Employees Have Little-Known "Union-Like" Rights

by Larry Feheley

The same federal law that grants employees the right to organize and join unions protects the right of all employees, union or non-union, to engage in "concerted protected activity." While most employers think of the National Labor Relations Act only in the context of unions, the agency that enforces that law, the National Labor Relations Board, has recently issued important rulings that can trap an unwary non-union employer. In these rulings the NLRB, which is now dominated by Clinton appointees, has expanded non-union employee rights in at least two significant areas.

1. Disciplinary Interviews

In a case that first arose in northern Ohio, the NLRB ruled that non-union employees can demand that a co-worker be present at a disciplinary interview, and that denying that right makes a discharge illegal. This decision abruptly reversed long-standing NLRB precedent to the contrary.

In Epilepsy Foundation of N.E. Ohio, 331 NLRB 92 (2000), the NLRB extended "Weingarten rights," which had previously only been available to union employees, to their nonunion counterparts. These rights afford a nonunion employee "the right to have a coworker present at an investigatory interview which the employee reasonably believes might result in disciplinary action."

Thus, workers can demand that a coworker be present at a disciplinary meeting, and refusing the request or discharging the employee for not cooperating with the investigation under these circumstances is unlawful. However, at least for the present, there are some constraints that apply:

1. The employee must make a request to have the coworker present. It is not the company's responsibility to advise the employee of his or her rights and; no warnings are required;

2. The ruling only applies to "employees." Therefore, supervisors or managers do not enjoy this right;

3. The right is to have a "coworker" present, not an attorney or other outsider;

4. The right to have a coworker present arises only when the employee "reasonably believes" that the meeting could lead to disciplinary measures against the employee. Therefore, a meeting with the employee to simply communicate or announce a disciplinary decision that has already been made - as opposed to an investigatory interview - does not entail the right to have a coworker present. However, since the right arises whenever the employee "reasonably believes" that discipline could occur, it probably exists even in those situations where the company assures the employee that he is not the target of the investigation;

5. Once allowed to be present, the coworker cannot tell the employee how to answer or not to answer questions. The company can insist on hearing the employee's account, not the co-worker's. A coworker who significantly obstructs the interview can be ejected;

6. The company is not required to unreasonably delay the investigation to accommodate the presence of a coworker; and

7. If the employee requests the presence of a coworker and the company wants to decline, nothing requires the company to go forward with the interview or meeting. The company can presumably tell the employee that it would like to hear the employee's side of the story, but not with others involved. Of course, in this event the company loses the benefit of getting all sides and facts regarding an incident.

Taken to its logical conclusion, this ruling could significantly complicate sexual harassment investigations. The problem probably doesn't arise where a supervisor is accused of harassment, since supervisors are not entitled to these rights. However, where co-employees are interviewed after a complaint of harassment, allowing other co-workers to be present could skew the results of the investigation, cause some delay, and present some delicate issues of privacy.

At its most fundamental level, supervisors need to know that they can't threaten to fire or discipline an employee who refuses to cooperate in an investigation by talking alone with the supervisor.

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2. Rules Prohibiting Discussion of Wages

Many companies have unwritten policies or statements in their Employee Handbooks that prohibit employees from discussing their wage or salary levels with other employees. In Main Street Terrace Care Center, 327 NLRB No. 101 (1999), the NLRB held that such a rule was illegal. The Board's ruling was subsequently upheld by the Sixth Circuit Court of Appeals. NLRB v. Main Street Terrace Care Center, 2000 U.S. App. Lexis 15603 (6th Cir. 2000).

In this case, the nonunion nursing home forbade its employees from discussing their wages with one another and eventually discharged an employee for violation of the rule. The NLRB decided that the company's rule violated the nonunion employees' rights to protected concerted activity and the appeals court agreed, stating:

"A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees' right to engage in protected concerted activity."

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Miscellaneous

1. Beware: Labor Unrest and OSHA

A company that experiences a labor union strike obviously has a lot to occupy its attention. Now, the federal government has confirmed what we all knew, or suspected, for some time. The government's General Accounting Office has issued a report that concludes that companies that are experiencing "labor unrest" are 6 1/2 times more likely than others to be inspected by OSHA. The primary reason, of course, is that employees file complaints with OSHA, either as a harassing technique or in the hope of gaining leverage. In response to the report, the OSHA Administrator reported that the agency has no reason to believe its complaint process is being abused.

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2. Paternalistic Concerns for Employee Safety Are Misplaced

The disability discrimination law, the ADA, provides that an employer does not have to allow a disabled worker to work in situations that pose a "direct threat" to individuals in the workplace. The courts have held, however, that this does not include a threat to the employee's own health or safety. Thus, even though an employee's medical condition may make him more susceptible to harm in the workplace, the employer must allow the employee to decide whether or not to take the risk of injury. However, the employee can be removed if he presents a substantial and legitimate threat to the health or safety of others. Echazabal v. Chevron, USA, 10 A.D. Cases 961 (9th Cir. 2000).

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3. FMLA Notices Required

The FMLA Regulations provide that an employer must give a notice to an employee that the employee's leave of absence will be considered to be FMLA leave. 29 C.F.R. §25.208(c). In other words, under the Regulations, if such notice is not given to the employee, the employee's absence does not count toward their twelve-week entitlement to FMLA leaves. A number of federal appeals courts have ruled that this Regulation is inapplicable or invalid where the employee was physically unable to return to work within the twelve-week period - if the employee was not able to return to work within the entire FMLA period, written notice at the start of the leave is superfluous because the employee could not have altered the situation or acted differently. However, this is not the rule in the Sixth Circuit, which governs Ohio. In Plant v. Morton International, Inc., 212 F.3d 929 (6th Cir. 2000), our appeals court ruled that an employee's absence does not count toward the twelve-week FMLA allotment unless the company gives written notice that the absence is being counted against the FMLA period, even if the employee cannot return to work within twelve weeks.

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4. Wrongful Discharge in Violation of Public Policy —Beware if You Are in Franklin County

A few years ago the Ohio Supreme Court created a cause of action called "wrongful discharge in violation of public policy." The essence of this claim is that the courts should not allow an employee to be discharged for a reason that would be against public policy. (For example, an employer should not be permitted to discharge an employee who refuses to lie for the company under oath because the state has a strong public policy that condemns perjury.)

In commenting on what the potential sources of this elusive "public policy" might be, the Ohio Supreme Court stated that public policy can be found in sources such as statutes, the Ohio and U.S. Constitution, administrative rules and regulations, and the common law. Painter v. Graley, 70 Ohio St. 3d 377 (1994).

The City of Columbus has an ordinance, Section 2331.03 of the City Code, which prohibits discrimination on the basis of "sexual orientation." In Das v. Ohio State University, 2000 U.S. Dist. Lexis 14759 (S.D. Ohio 2000), the plaintiff, a gay woman, sued the University and alleged that she was discharged because of her sexual orientation. The District Court ruled that the plaintiff could maintain a claim —not for unlawful discrimination, but for wrongful discharge in violation of public policy. In so ruling, the Court held that the city ordinance represented a "clear public policy" because home rule cities such as Columbus have been given the authority under the Ohio Constitution to adopt legislation. On this basis, the Court concluded that a claim of sexual orientation discrimination may be brought under the public policy exception, based upon Section 2331.03 of the Columbus City Code.

Discrimination on the basis of sexual orientation is not unlawful under either the federal (Title VII) or state (Chapter 4112) anti-discrimination laws. However, in locations that have enacted a local ordinance that prohibits sexual orientation discrimination, such as Columbus, employers may nonetheless be found liable for sexual orientation discrimination on the basis of a claim of wrongful discharge in violation of public policy.

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5. Another Source of Potential Liability — Cell Phones

Have you given any thought to adopting a policy regarding employees' use of cell phones while driving on company business? If not, you may want to consider it.

Two statistics are of interest in this regard:

1. workers are more likely to die from traffic accidents than any other job hazard, and

2. according to the Harvard Center for Risk Analysis, nearly 85% of the country's 94 million cell phone owners use them while driving.

The confluence of these two statistics confirm that employees' use of cell phones while driving is likely to lead to accidents. Last year, an investment brokerage company paid $500,000 to settle a suit brought by the family of a motorcyclist who was killed when he was hit by an employee who was using a cell phone. As a result, many companies are adopting policies that advise employees that the company either prohibits, or at least discourages, the use of cell phones while driving. Some companies have flatly prohibited the use of cell phones while operating company vehicles. Others have issued safety notices, encouraging employees to pull off the road before using the phone. Still other companies are providing hands-free phone sets to employees for official use; others are adopting cell phone use guidelines as a part of their safety programs.

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6. Workplace Posters

The U.S. Department of Labor now publishes information on its website regarding the posters that are required in the workplace. The site also allows employers to print the posters directly off the internet. Labor Department posters advising employees of their rights are required for the polygraph law, (Employee Polygraph Protection Act), the Wage-Hour law (Fair Labor Standards Act), OSHA, the FMLA (Family and Medical Leave Act), government contract laws, and the federal anti-discrimination laws. In addition, posters describing state laws are also required. The Labor Department information can be found at http://www.dol.gov/elaws. The posters are available at http://www.dol.gov./elaws/posters.htm.

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