Sixth Circuit Affirms Dismissal of Overly Broad Injunction Request for Employer to Merely Comply with the Law

About two weeks ago, a divided Sixth Circuit Court of Appeals affirmed an employer’s summary judgment in an OSHA case brought by OSHA.   Perez v. Ohio Bell Telephone Co., No. 15-3303 (6^th Cir. 7-14-16).  In that case, the DOL alleged that the employer had retaliated against 13 employees who had work-place injuries on the grounds that the accidents had been preventable if the employees had complied with workplace safety rules.   It also sought an injunction requiring the employer to comply with the OSH Act going forward.  In response, the employer had revised the allegedly offending policies, removed the offending disciplinary records and compensated the employees for their unpaid suspensions.  It then moved for summary judgment on the grounds that the lawsuit was moot and the injunctive relief sought was overly broad.  The district court granted the employer’s motion, which was affirmed on appeal.  “An injunction that does no more than prohibit any and all conduct in contravention of already existing law is overbroad under the terms of Rule 65(d).”

According to the Court’s opinion, OSHA received 13 complaints over a 14 month period from Ohio Bell employees who had been disciplined (with usually an unpaid suspension) after reporting workplace injuries which the employer found to be preventable if the employees had complied with unspecified provisions of various safety policies.   Although the employer produced evidence that it only disciplined 11% of employees who reported workplace accidents and had found that only 29% of workplace accidents had been preventable, it revised is policies and procedures as requested by OSHA and rescinded the allegedly offensive policy.  (There was no discussion in the opinion about whether the employer ever disciplined employees for violating safety rules in the absence of a workplace accident, a practice which OSHA has previously indicated it would interpret retaliatory).   Not surprisingly, OSHA concluded that Ohio Bell had retaliated against the complaining employees for reporting workplace injuries and filed suit asserting violations of §11(c), which provides in relevant part that:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

The Complaint sought the recission of the disciplinary actions, the posting of a notice promising not to retaliate against employees who engage in protected conduct and seeking injunctive relief:

permanently enjoining and restraining Defendant, its officers, agents, servants, employees and those persons in active concert or participation with it, from violating the provisions of Section 11(c)(1) of the Act, and for such other and further relief as may be necessary and appropriate.

With such an injunction, the employer could be found to not only have violated the OSH Act, but also to be in contempt of court. The defendant employer promptly compensated the thirteen employees, rescinded their disciplinary action, and then moved for summary judgment on the grounds that the lawsuit was moot (in that all of the concrete requested relief had been provided) and the injunctive relief requested was overly broad and lacked factual support (in that the prior policies had been rescinded and OSHA had approved of the existing policies).   OSHA’s only response was to note that it had received two additional and similar employee complaints about the defendant employer, showing that it was still retaliating against employees who reported workplace accidents.

The Court observed that employees were not protected from disciplinary action merely because they had reported a workplace injury, although their protected conduct could not be a factor in the disciplinary action.  Nonetheless,

an employee cannot “refuse to comply with occupational safety and health  standards or valid safety rules implemented by the employer in furtherance of the Act.” 29 C.F.R. § 1977.22. An employee doing so is “not exercising any rights afforded by the Act.” Id. As a result, an employer may take disciplinary action “in response to employee refusal to comply with appropriate safety rules and regulations.” Id. Such discipline imposed by an employer “will not ordinarily be regarded as discriminatory action prohibited by section 11(c).” Id. The Act and its regulations, however, do not provide any further elaboration as to when an employer appropriately disciplines an employee for not complying with mandatorily imposed health and safety guidelines and when an employer inappropriately discriminates against an employee for refusing to be exposed to a hazardous condition, 29 C.F.R. § 1977.12, or otherwise exercising a protected right under the Act

In this case, the Court affirmed the dismissal and agreed that the concrete relief sought had already been provide and that lawsuit sought an overly broad and vague injunction:

Injunctions that do no more than compel compliance with existing law are overly broad and do not comply with Federal Rule of Civil Procedure 65. Because the request for an injunction was properly denied, and the Secretary’s requests for tangible relief had, by concession, been satisfied, the district court properly dismissed the case.

               . . .

               Most importantly, a broad injunction requiring a party to obey the law would require “that courts[,] . . . for the indefinite future[,] . . . give effect in contempt proceedings to an order of such breadth.” Id. “The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one.” . . .  Accordingly, the provisions of Federal Rule of Civil Procedure 65(d) are “designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.”  . . . Injunctions that seek no more than obedience to the law as written are deserving of scrutiny under Rule 65(d).

                . . . .

There may be circumstances when obey-the-law injunctions are justified by the facts of the case in which the injunction is sought.  . . . We do not now craft a per se rule against requests for obey-the-law injunctions. But, at a minimum, where an injunction request is challenged on a motion for summary judgment, the party seeking the challenged injunction is not relieved of its duty to respond to the merits of the Rule 56 motion. The responding party must furnish facts in accordance with Rule 56’s standards that justify the request for a broad injunction or propose a narrower injunction in keeping with the facts of the case viewed in the light most favorable to the non-movant.

The dissenting judge would have limited the analysis to mootness, which she found did not exist in this case.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OSHA Discourages Financial Incentives for Low Reports of Workplace Injuries

Earlier this month, OSHA released a brief enforcement memorandum to its regional offices and whistleblower program managers that placed a bulls-eye on common employer programs which reward employees and managers for reducing workplace injuries. OSHA seems to assume that a decrease in reportable injuries is a fiction that is created to receive a financial incentive and is masking the higher rate of workplace injuries and risks to employee safety. The basis for the memorandum is §11(c) of OSHA which prohibits employers from discriminating against employees who exercise their rights under the Act. 29 C.F.R. § 1904.36.

According to OSHA, “[t]here are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA's recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. 29 C.F.R. 1904.35(b)(1).” For example, “if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries that it is required to record under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made.” Moreover, “OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates. While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” (italics added).

Some of the “common potentially discriminatory policies” OSHA directs the regional offices and whistleblower program managers to scrutinize include:

1. A policy or practice of disciplining all employees involved in a workplace accident regardless of the circumstances. “OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) . . . . In other words, an employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury.”

2. A policy or practice of disciplining employees for the time or manner for reporting workplace injuries or illnesses. “OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee's right and ability to report. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination. In investigating such cases, factors such as the following may be considered: whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee had a reasonable basis for acting as he or she did, whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest.”

3. A practice of disciplining employees involved in accidents for violating safety rules when there is no evidence that the employer otherwise monitors for safety compliance, disciplines employees for violating the same rules in the absence of a reported accident, etc.

OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed. Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be considered. Vague rules, such as a requirement that employees "maintain situational awareness" or "work carefully" may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee.

4. Programs that reward employees for not reporting a workplace accident or illness. Disappointingly, OSHA believes that incentive programs for attending safety training are as effective as rewarding safe behavior. “For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or "near misses".

While OSHA has not banned these common safety incentive programs which reward employees for avoiding recordable cases or lost work time due to injuries, these practice will clearly receive more scrutiny during investigations and reviews of VPP applications and re-certifications. These issues will also likely be raised during any union disputes. In addition, another byproduct of this analysis is that these employer practices may now become the basis for wrongful discharge claims under Ohio’s public policy tort law.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OSHA Issues Enforcement Guidance on Assessing Workplace Violence

Last month, the federal Occupational Safety and Health Administration (OSHA) issued enforcement guidance to its regional offices to establish uniform procedures for investigating and assessing incidents of workplace violence, like the one last Friday afternoon in a California hair salon. Workplace violence has ranked in the top four causes of death for more than fifteen years. “Workplace homicides remained the number one cause of workplace death for women in 2009.” “Employers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards.” In Ohio, it could also lead to public policy discharge and retaliation claims. A complaint concerning workplace violence could trigger an OSHA investigation into many of the employer’s safety and recordkeeping practices. According to OSHA, a combination of administrative, engineering and education measures can greatly reduce, if not eliminate, workplace assaults and other violence. The enforcement guidance also contains a checklist of steps employers can take to improve workplace assessments and safety. Interestingly, OSHA refuses to investigate complaints of co-worker disputes or bullying.

Workplace violence is recognized as an occupational hazard in some industries and environments which, like other safety issues, can be avoided or minimized if employers take appropriate precautions. At the same time, it continues to negatively impact the American workforce. Workplace violence has remained among the top four causes of death at work for over fifteen years, and it impacts thousands of workers and their families annually.

The Bureau of Labor Statistics’ (BLS) Census of Fatal Occupational Injuries (CFOI) shows an average of 590 homicides a year from 2000 through 2009, with homicides remaining one of the four most frequent work-related fatal injuries. Workplace homicides remained the number one cause of workplace death for women in 2009 . . . . In addition, during the same time period, survey results showed that 19% of victims of workplace violence worked in law enforcement, 13% worked in retail and 10% worked in medical occupations.

Research has identified factors that may increase the risk of violence at worksites. Such factors include working with the public or volatile, unstable people. Working alone or in isolated areas may also contribute to the potential for violence. Handling money and valuables, providing services and care, and working where alcohol is served may also impact the likelihood of violence. Additionally, time of day and location of work, such as working late at night or in areas with high crime rates, are also risk factors that should be considered when addressing issues of workplace violence.

By assessing their worksites, employers can identify methods for reducing the likelihood of incidents occurring. The Directive also includes a list of best practices, including the following:

● Conduct a workplace violence hazard analysis (this includes analyzing vehicles used to transport clients).
● Assess any plans for new construction or physical changes to the facility or workplace to eliminate or reduce security hazards.
● Provide employees with training on workplace violence.

● Implement Engineering Controls, such as:
- Install and regularly maintain alarm systems and other security devices, panic buttons, hand-held alarms or noise devices, cellular phones and private channel radios where risk is apparent or may be anticipated. Arrange for a reliable response system when an alarm is triggered.
- Provide metal detectors—installed or hand-held, where appropriate— to detect guns, knives or other weapons, according to the recommendations of security consultants.
- Use a closed-circuit recording on a 24-hour basis for high-risk areas.
- Place curved mirrors at hallway intersections or concealed areas.
- Lock all unused doors to limit access, in accordance with local fire codes.
- Install bright, effective lighting, both indoors and outdoors.
- Replace burned-out lights and broken windows and locks.
- Keep automobiles well maintained if they are used in the field.
- Lock automobiles at all times.

● Implement Administrative Controls—to change work practices and management policies in order to reduce exposure to hazards. Such controls include:
- Establish liaisons with local police and state prosecutors. Report all incidents of violence. Give police physical layouts of facilities to expedite investigations.
- Require employees to report all assaults or threats to a supervisor or manager (in addition, address concerns where the perpetrator is the manager). Keep log books and reports of such incidents to help determine any necessary actions to prevent recurrences.
- Advise employees of company procedures for requesting police assistance or filing charges when assaulted and help them do so, if necessary.
- Provide management support during emergencies. Respond promptly to all complaints.
- Set up a trained response team to respond to emergencies.
- Use properly trained security officers to deal with aggressive behavior. Follow written security procedures. [Do they know how to respond to armed aggression? Have you asked about the training your security contractor provides to security guards assigned to your facility?]
- Develop a written, comprehensive workplace violence prevention program, which should include:
- policy statement regarding potential violence in the workplace and asignment of oversight and prevention responsibilities.
- workplace violence hazard assessment and security analysis, including a list of the risk factors identified in the assessment and how the employer will address the specific hazards identified.
- Development of workplace violence controls, including implementation of engineering and administrative controls and methods used to prevent potential workplace violence incidents.
- A recordkeeping system designed to report any violent incidents. Additionally, the employer shall address each specific hazard identified in the workplace evaluation. The reports must be in writing and maintained for review after each incident and at least annually to analyze incident trends.
- Development of a workplace violence training program that includes a written outline or lesson plan.
- Annual review of the workplace violence prevention program, which should be updated as necessary. Such review and updates shall set forth any mitigating steps taken in response to any workplace violence incidents.
- Development of procedures and responsibilities to be taken in the event of a violent incident in the workplace.
- Development of a response team responsible for immediate care of victims, reestablishment of work areas and processes and providing debriefing sessions with victims and coworkers. Employee assistance programs, human resource professionals and local mental health and emergency service personnel should be contacted for input in developing these strategies.

● Limit window signs to low or high locations and keep shelving low so that workers can see incoming customers and so that police can observe what is occurring from the outside of the store.
● Ensure that the customer service and cash register areas are visible from outside of the establishment.
● Use door detectors so that workers are alerted when someone enters the store.
● Have height markers on exit doors to help witnesses provide more accurate descriptions of assailants.
● Establish a policy of when doors should be locked. Require workers to keep doors locked before and after official business hours.
● Train all staff to recognize and defuse verbal abuse that can escalate to physically combative behavior.
● Train all staff and practice drills for physically restraining combative patients or clients, including the use of physical restraints and medication, when appropriate.
● Provide employee “safe rooms” for use during emergencies.
● Provide staff members with security escorts to parking areas in evening or late hours. Ensure that parking areas are highly visible, well lit and safely accessible to the building.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.