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Posts in discipline and discharge.

Many schools and employers' understandable response to the #METOO revelations and horrific workplace shootings has been to implement inflexible Zero Tolerance rules whose violation - no matter how trivial - triggers discharge or other heavy response - often without any opportunity for due process or appeal based on mitigating factors. The justification is that some behaviors are so bad that they must be nipped in the bud at an early stage. These processes do not require managers to use judgment. In the safety realm, zero tolerance processes are often in the form of Safety Absolutes - certain safety rules whose violations trigger automatic discharge. This post discusses the use and potential problems of Zero Tolerance processes.

A recent Law 360 headline described a corporate senior counsel explained providing an erotic book with “playful and provocative” drawings to a fellow manager as an “innocent gift.” He had even written an inscription which read, “a taste of Dharma Bum to remind that the Dharma breathes in and out and is nothing special,” referring, in part, to the Buddhist philosophy of life and the novel by beat writer Jack Kerouac. There are many other allegations and facts associated with the underlying discrimination claim, and I have no idea as to whether unlawful conduct actually occurred.

We’re going to comment on the numerous policies and rules which must be revised because of the NLRB’s many changes last year; especially during December 2014. Today, we’ll briefly discuss email.

Electronic communications are a mixed blessing. Business is more efficient and new ways of commerce continue to open. However, ubiquitous electronic communications have eroded our personal time and presented near-addicting distractions. From a legal standpoint, electronic communications, and especially e-mails, not only create damaging evidence but may even contribute to legal claims.

Periodically, I blog on the need to avoid knee jerk decisions about whether employees with a disability can perform the essential functions of the job. The employee may or may not be able to perform the essential functions of the job, but if the employer fails to engage in their individualized analysis and document their consideration of accommodation options, how will they defend their decision if challenged? According to the EEOC’s Complaint, the ...

Fran Sepler recently posted an insightful blog, “I’m Sort of Sorry: Coaching the High Level Harasser” discussing coaching a high-level performer regarding harassment, poor behavior or insensitivity. It takes wisdom and experience to deal with an executive who controls valuable business or can fire you if your message is displeasing.

Despite the DOL’s continuous promotion of whistleblower/retaliation claims, I don’t believe that employers appreciate the sheer variety of ways in which disgruntled employees can claim that the employer retaliated against him for complaining or raising issues related to safety, environmental, wage-hour, discrimination, or numerous other subjects.

Kudos to my partner and fellow class of 1984 member, Jim McDonald, on being quoted today in the Wall Street Journal in "Why Company Lawyers Are Reading A Mental-Health Manual."

I was fortunate last week to spend time in Denver with my buddies on the AGC National Safety Committee. We had a good discussion on safety apps and technology, which led into discussions about “can I discipline an employee for taking and posting photos of a work site accident,” or “can we discipline an employee for cursing the company, saying derogatory things, and pasting our logo on his Facebook, “kick” or other social media site?” We then discussed whether an employer could prohibit taking and posting photos of a customer’s site, including where secret or proprietary equipment and processes might be involved … and how to respond if the owner of a multiemployer site told the contractor not to allow photos and and posting of about their company or property? But I’m getting ahead of myself. Let’s first review a few social media basics.

OSHA enforces more whistleblower laws than any other agency and has made whistleblower protection one of its principal goals. So it grabs your attention when you read “Whistleblower Wins $820,000 Settlement Against OSHA.”

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