By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By Ofer Lion

injured businessman in bandages and crutches with dollar pile and falling money vectorIf your company is a nonprofit or has a nonprofit foundation, are you covered if something happens to your volunteers while they’re engaged in service to your organization?

The concern is real. There were 287 fatal occupation injuries among volunteers from 2003-2007. Prudent nonprofits carry insurance, called “volunteer accident insurance,” to cover injuries to volunteers.

Workers Compensation

There are significant differences in how states address workers’ compensation coverage for volunteers. Workers’ compensation coverage can limit employer liability for injuries to an employee or, in some cases, a volunteer.

Under California law, a nonprofit can opt into workers’ compensation coverage with respect to their volunteers. But absent such an affirmative election, volunteers for nonprofit organizations generally are excluded from the definition of “employee” and therefore are not covered by the workers’ compensation and insurance laws (Labor Code § 3352(i)).

“[A] person who performs voluntary service without pay for a private, nonprofit organization, as designated and authorized by the board of directors of the organization, shall, when the board of directors of the organization, in its sole discretion, so declares in writing and prior to the injury, be deemed an employee of the organization for purposes of [workers’ compensation and insurance] while performing such service.” (Labor Code § 3363.6(a)). As a result, opting into workers’ compensation coverage effectively requires an affirmative resolution of the nonprofit’s board to have volunteers be deemed employees for purposes of workers’ compensation and insurance coverage.

For this purpose, “ ‘voluntary service without pay’ shall include the performance of services by a person who receives no remuneration other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Labor Code 3363.6(c)). A volunteer who is an “employee,” by a written declaration of the board, would be entitled to full coverage as an employee.

Nonprofits that do opt in may wish to contact their workers’ compensation insurer to preempt coverage disputes that may arise after an illness or injury claim is made by a volunteer. Workers’ compensation insurance premiums are often based on gross payroll amounts. Because volunteers are not paid, a different allocation could be requested by the insurer to increase premiums accordingly.

Workplace Safety

Nonprofits should seek to prevent injury to their volunteers (and employees) by providing a safe workspace. At a minimum, while the federal Occupational Safety and Health Act’s (“OSHA”) and California’s similar statute do not appear to protect volunteers, OSHA has indicated that its coverage provides that any charitable or non-profit organization that employs one or more employees must comply with OSHA’s requirements and regulations. In any case, the proper supervision of volunteers should include the provision of a safe working environment.

Workplace Solution

The use of volunteers by nonprofits comes with legal risks, including those arising from injuries that volunteers incur. Those nonprofits fortunate enough to have people willing to serve without compensation are advised to consider carefully the possible legal implications before accepting services from such individuals. Nonprofits with volunteers must provide safe workspaces, consider procuring volunteer accident and volunteer liability policies, and consider formally opting into workers’ compensation insurance, if available.

Edited by John Giovannone and Chelsea Mesa

By Alexander J. Passantino, Richard L. Alfred, Loren Gesinsky, James L. Curtis, and Meagan Noel Newman

In anticipation of a long, stormy winer, Seyfarth Shaw has prepared a Client Alert to help employers navigate wage & hour issues arising from potential closures, as well as workplace safety issues related to severe winter weather.

In the wake of winter storms thousands of businesses, schools and government offices face the challenge of cleaning up significant ice and snowfall and trying to return to operation. For many of these employers, the unusual days ahead may require special attention to workplace safety issues. Storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks or volunteer to undertake certain responsibilities that are not within their regular job duties. In the hurry to get our communities up and moving again, many unfamiliar hazards can be easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness.

Additionally, winter weather creates a variety of hazards that can significantly impact everyday tasks and work activities. These hazards include slippery roads/surfaces, strong winds and environmental cold.

Read the full Client Alert for all of our guidance and recommendations.

By Ilana R. Morady and Meagan Newman

The emotional and financial impact of workplace violence events is undeniable and virtually every employer understands the importance of having an effective workplace violence prevention program—yet, many employers stop short when it comes to domestic violence issues.  Domestic violence (or “intimate partner violence”), they might think, is not an employer’s problem.  Some employers are worried about intruding into the personal lives of their employees, and this is a valid concern.  However, the fact is that domestic violence is a problem that impacts our workplaces and employers should not shy away from addressing it.

Impact on Employers

The statistics regarding domestic violence are staggering: in the U.S., one in four women, and one in ten men, has experienced intimate partner violence (defined as threatened, attempted, or completed physical or sexual violence or emotional abuse by a current or former intimate partner), according to the U.S. Centers for Disease Control and Prevention (CDC).

Beyond the emotional and physical impact on affected employees, there is significant financial impact:  The costs of intimate partner rape, physical assault, and stalking exceed $5.8 billion each year, according to the CDC.

The impact on employers includes lower productivity rates and higher absenteeism, tardiness, and job loss rates. Additionally employers may face higher medical–related costs, higher employee benefit costs and increased insurance premiums. In fact, one study found that $1,775 more is spent by employers on each victim of domestic violence annually.

What laws apply?

  • Occupational safety and health laws generally require employers to provide a workplace that is free from recognized hazards. OSHA has increased its focus on workplace violence, as a recognized hazard, in recent years.
  • Family and medical leave laws may require employers to grant leave to employees who are coping with domestic violence situations.
  • Victim assistance laws may prohibit employers from taking adverse job actions against women who disclose their situation or who take time off from their jobs to attend court appearances.
  • Under certain circumstances, acts of violence against women may constitute a form of harassment, which may violate federal or state anti-discrimination laws.

What can you do?

  • Provide training to supervisors regarding the signs of domestic violence.
  • Post domestic violence resource information in private areas, such as restrooms.
  • When addressing attendance or performance issues in situations where you suspect domestic violence may be an issue, express concern about an employee’s well-being without specifically mentioning domestic violence and consider mentioning organizational resources such as EAP.  HR personnel should not attempt to counsel victims of domestic violence.
  • Address restraining orders in your workplace violence prevention program and ensure there is a mechanism for employees to communicate the terms of any such orders to the employer.  In states that permit employers to obtain restraining orders that cover the workplace, evaluate the feasibility of obtaining such an order.
  • Ensure that employees understand the procedures to follow in the event of a violent or potentially violent incident.
  • Where an employee provides information regarding his or her abuser, take appropriate steps to limit or bar the abuser’s access to the workplace.
  • Additional security steps to consider include:  providing an escort to the parking lot, providing a parking space close to the building, offering flexible or varied work hours, removing the employee’s name from the office directory, screening calls and changing the employee’s work e-mail address.

 

By James L. Curtis, Meagan Newman, Patrick J. Bannon, Barry J. Miller

In a recent Client Alert, Jim Curtis and Meagan Newman discuss workplace safety issues in the wake of Hurricane Sandy. Employers need to keep in mind that storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks, or volunteer to undertake certain responsibilities, that are not within their regular job duties. Additionally, in the hurry to get our communities up and moving again, many unfamiliar hazards are easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness. As the Occupational Safety and Health Administration urged in the days following Tropical Storm Isaac this summer, “Recovery work should not put you in the recovery room.”