February 22, 2002

OSHA: Participation in Voluntary Protection Programs on the Rise

Holland & Knight Alert
Howard Sokol


CEO’s Comments Not Evidence of Policy of Age Discrimination

Published comments by the employer’s CEO that the company needed "new, young thinking" and that the company would no longer have "cradle-to-grave type employees" were insufficient to evidence a discriminatory policy against older employees, without more, in light of the employer’s well-documented performance of the employee. A federal district court in New York granted summary judgment dismissing an age discrimination claim alleging that the foregoing comments evidenced a "policy" of denying merit pay increases to force older workers into retirement. In dismissing the claim, the court held that the plaintiff’s failure to receive merit pay increases during the last five years of his employment was due to his documented poor work performance. The court further held that the CEO’s comments, without more, were insufficient proof of a "policy" that might otherwise render the reasons for the employer's actions pretextual. The case underscores the importance of well- documented performance evaluations, which helped overcome adverse inferences from being drawn from the CEO’s ambiguous statements.


"Sex Stereotyping" Claim Actionable Under Title VII

A Massachusetts federal district court has ruled that, even though discrimination on the basis of sexual orientation is not prohibited by Title VII, a man can ground a Title VII sex discrimination claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity. The court concluded the plaintiff had presented sufficient evidence in support of this claim to survive summary judgment by showing that co-workers continuously tormented him by making comments and leaving photographs in his work area that mocked his masculinity, portrayed him as effeminate, and implied that he was a homosexual. In addition the evidence revealed that the plaintiff’s supervisors disciplined him more severely than other employees, and that his co-workers, among other things, asked him if he had gotten AIDS yet, called him anti-gay epithets, called him a "sword swallower," and taped pictures of Richard Simmons "in pink hot pants" to his work area. The lesson employers should take away from this case is that if they act on stereotypes about sexual roles in making employment decisions, or allow the use of these stereotypes to create a hostile or abusive work environment, they open themselves up to liability under Title VII’s prohibition of discrimination on the basis of sex.


Rights of Union "Salts" Expanded

Fred Braid

Several years ago the Supreme Court decided that union organizers paid to apply for jobs at a targeted employer ("salts") were "employees" entitled to all rights and protections afforded by the National Labor Relations Act, even though their primary objective was organizing and not employment, except as a means to organize. Accordingly, employers cannot discipline or terminate or otherwise discriminate against union salts on account of their union activity. Recently, the Seventh Circuit (IL, IN, WI) decided that an employer cannot terminate or discipline salts who lie on their employment application, provided that the inaccuracies are only with respect to matters to conceal their union organizing activities. In the case at issue, the salt said on his application that his last employer had laid him off when, in fact, he had taken a leave of absence to organize. Given that his new job paid less than the job from which he was taking leave, the court permitted the lie to conceal his union activity. However, the individual had also misrepresented facts about his job qualifications, and the court held that this he could not do and upheld the salt’s dismissal on this basis. Therefore, it is important not to make an unlawful, knee-jerk reaction to the discovery of a union organizer in your midst, but rather to recognize that you are in the throes of a union organizing campaign and to respond accordingly.


Employer's Request to Delay Leave Chills Worker's FMLA rights

A federal district court in New Jersey held that an employer may have violated the FMLA rights of an employee when it asked him to delay his leave until after a holiday weekend. The employee, a cook in a hotel, was on layoff status when he received a recall notice to return to work on the Memorial Day weekend. The employee notified Human Resources that his wife was ill and that he needed a one-month leave to care for his autistic son, who required constant supervision and care. The employer asked that he delay his leave until after the Memorial Day weekend. When the employee explained that he could not delay his leave because he had to care for his son, the hotel denied his request for leave and terminated his employment. In allowing the claim to go forward, the court explained that the hotel chilled the employee's rights under the FMLA by insisting that he delay his leave and summarily firing him when he declined. This case highlights the importance of considering FMLA implications before responding to an employee's request for leave.


Motor Carrier Act Applies to Delivery of Newspaper Supplements

A federal district court in Illinois recently underscored the broad scope of the Motor Carrier Act (MCA). The MCA is an exemption to the FLSA, relieving employers of federal overtime pay requirements for employees who operate motor vehicles that transport goods in interstate commerce. In this case, the drivers’ only connection to interstate commerce was the distribution of newspapers regularly containing supplements (e.g. magazines, coupons, ads, etc.) that were printed out of state. The decision underscores the breadth of the little known MCA exemption. Employees should beware, however, because state wage payment laws still might apply.


Are Undocumented Aliens Entitled to Back Pay?

The Supreme Court will soon resolve a question left unanswered when it decided several years ago that illegal aliens were nonetheless entitled to the protection of the National Labor Relations Act. If the NLRB finds that such employees have been unlawfully terminated, as is the case in the matter before it, can the NLRB order any back pay to the undocumented aliens? The NLRB’s remedy acknowledged the impropriety of its traditional remedy of reinstatement, and modified the back pay entitlement to limit the employer’s obligation to the period up to when it discovered that the employee was an illegal alien. The D.C. Circuit (District of Columbia) affirmed the NLRB’s order, and the employer appealed, arguing the points that the D.C. Circuit rejected, namely that the requirement that it pay illegal aliens violates an earlier Supreme Court decision and/or the Immigration Reform and Control Act’s prohibition against knowingly making payments to an undocumented alien. A decision is expected later this year. 


New Standard on Recording and Reporting In Effect

OSHA’s new standard on Recording and Reporting Occupational Injuries and Illnesses, 29 CFR § 1904, went into effect on January 1, 2001, as reported in a previous Alert. The importance of complying with these requirements is underscored by the latest year end statistics for fiscal year 2001. These statistics show that the recordkeeping standard was one of the most frequently cited OSHA standards, accounting for more than 1,500 alleged violations. In addition, alleged recordkeeping violations accounted for the second highest penalty assessment, a proposed penalty of $536,000. OSHA provides a wealth of information on its Web site, www.osha.gov. There is information concerning the new standard, www.osha.gov/recordkeeping/index.html, including the regulatory text, www.osha.gov/OshStd_toc/1904_New/OSHA_Std_toc_1904.html, the new forms, www.osha.gov/recordkeeping/RKforms.html, and answers to common questions , www.osha.gov/recordkeeping/entryfaq.html.

Participation in Voluntary Protection Programs on the Rise

Howard Sokol

An OSHA Voluntary Protection Program (VPP) worksite is one that OSHA has recognized as, among other things, having reduced its injury rates to approximately half the industry average. OSHA exempts such sites from its priority inspection schedule, and according to Paul Villane, the new director of the Voluntary Protection Program Participant's Association (VPPPA), the benefits of reducing occupational injuries add up to a savings, on average, of $15,000 per prevented injury. In addition, VPP-approved sites benefit from increased employee satisfaction and goodwill. Over the past decade, the number of VPP-approved sites has quadrupled to more than 800 throughout the United States. The Bush Administration and the VPPPA seek to increase the number of VPP-approved sites, placing a special emphasis on encouraging small business participants as well as those from diverse industry sectors. In addition there is a bill, before the House Education and the Workforce Subcommittee on Workforce Protections, that seeks to officially amend the Occupational Safety and Health Act of 1970 to formally include details and an endorsement of the VPP. We can help if you would like to explore the possibilities of VPP status.

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