April 3, 2014. Employers have the right to test job applicants and existing employees for illegal drugs and alcohol in the workplace. States vary in their respective jurisdictions on what the rules are for such testing and how to respond to positive testing results. For instance, in Iowa, Post-Accident Testing requiring employees to submit to an alcohol and/or drug test in connection with your company's investigation of workplace accidents can only occur in a reportable personal injury or as a result of property damage, including equipment, estimated at the time of accident exceeding $1,000.00. If an employer wishes to perform periodic random testing for illegal drugs, there are certain protocols and requirements that must be met in order to do so under Iowa law. The bottom line is, employers need to be aware of what the laws are in each state they do business.
March 14, 2014. In Bolles v. Midwest Sheet Metal Co., Inc., ___ N.W.2d ___, filed March 11, 2014. No. A-13-203, the Nebraska Court of Appeals ruled that a heart attacked suffered in the work place can be a work comp compensable claim. Often times employers assume such incidents are not compensable. In Bolles, the deceased employee had previously suffered a heart attack and was diagnosed with high blood pressure, high cholesterol. He was also a smoker and did not exercise. In ruling for the surviving spouse and thus granting her work comp surviving spousal benefits, the Court held that conditions in the workplace and the stressors placed upon the deceased employee triggered the heart attack. Medical opinion evidence offered at the time of trial, although conflicting, established that material and substantially contributing factors caused the heart attack, such as working in direct sunlight in high temperatures and high humidity. Employers, as work comp insureds, should never assume that a heart attack occurring at work is non-compensable. A full incident investigation should also be conducted when an employee suffers an accident or injury at work.
February 21, 2014. As part of the U.S. Occupational Safety and Health Administration's (OSHA) increased emphasis on enforcement, all employers should know that whistleblower complaints have been on the rise in recent years — as well as the rewards and protections provided to employees who act as whistleblowers. The OSHA Act not only requires employers to comply with a wide variety of safety and health standards, but it also prohibits employers from retaliating against employees for exercising their rights under Section 11(c). These rights include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, and raising a safety or health complaint with the employer. The anti-retaliation provision applies to all employers, including those that don't think of their business as typically landing on OSHA's inspection radar.
August 8, 2013. In December 2011, a CareerBuilder/Harris survey revealed that more than two-thirds of companies were affected by a bad hire in the past year. For 41% of those companies, the mistake cost them at least $25,000. New guidelines issued by the U.S. Equal Employment Opportunity Commission (EEOC) in April 2012 appear to 'up the ante' on identifying perceived risks associated with employee applicant background checks. These guidelines reiterate the EEOC’s long-standing policy that criminal history checks alone are not sufficient to determine suitability for hiring. Specifically, the EEOC indicated that while arrest records are not probative that criminal conduct has occurred, convictions are. The agency has also stressed that criminal record exclusions have a “disparate impact” based on race, sex and national origin, for instance involving African-Americans and Hispanics. And most importantly, it has noted that a policy of excluding all applicants with a criminal history—particularly when the issue is not “job-related or consistent with business necessity”—should be avoided (unless required, as it is in certain professions such as trucking, by other federal laws). Employers should review their hiring practices and procedures to determine if EEOC compliance may be at risk. Bruce Smith is an attorney at the Goosmann Law Firm licensed to practice law in the states of Iowa, Nebraska and South Dakota. The firm's practice includes, but is not limited to, representation of clients in business related matters and transactions. Bruce can be reached at (712) 226-4000 or firstname.lastname@example.org. email@example.com
August 1, 2013. Managing a company's risk for potential OSHA liability may mean more than being concerned about worker safety. OSHA has come under considerable criticism for the ineffectiveness of its penalties, particularly criminal penalties. OSHA is only able to pursue a criminal penalty when a willful violation of an OSHA standard results in the death of a worker. The maximum penalty is a misdemeanor with a maximum of 6-months in jail. In response to the criticism, OSHA, in conjunction with the Department of Justice and the EPA, announced in 2006 a joint enforcement initiative called the Worker Endangerment Initiative. The government principle is that employers are willing to ignore worker safety laws in their efforts to maximize production and cut costs will ignore environmental laws. Accordingly, the Environmental Crimes Section (ECS) and the Environmental Protection Agency Criminal Investigation Division provides many OSHA compliance officers with criminal investigation training so that serious environmental crimes may be identified. Employers should be aware of the potential for multi-agency enforcement (civil and criminal) for workplace incidents that can be both safety and environmental violations of the law at the same time.