Workforce Bulletin

By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in ...

By:  John F. Fullerton III

The Second Circuit has given class action waivers another shot in the arm.  In Parisi v. Goldman, Sachs & Co. (pdf), plaintiff argued that because she had agreed to arbitrate statutory employment discrimination claims against her employer, but could not proceed in a class-wide arbitration, she must be permitted to pursue her Title VII pattern-or-practice sex discrimination claim as a class action plaintiff in court; otherwise, her arbitration agreement would constitute an impermissible waiver of a substantive statutory right.   The Court firmly ...

By Eric J. Conn, Head of EBG’s OSHA Practice Group

We are asked frequently by employers in the restaurant, delicatessen, and grocery industries whether OSHA’s Personal Protective Equipment (PPE) and Hand Protection regulations require the use of cut-resistant gloves for employees who work with knives or slicers.  Some employers have even reported that OSHA representatives have told them that the use of cut-resistant gloves is mandatory for employees working with knives in food service.  Whether food service employees in kitchens, delicatessens, or grocery stores are required to wear cut-resistant gloves, however, is not as clear-cut as OSHA has apparently been suggesting.

What is clear is that OSHA’s PPE standards are “performance-based” standards, not “specification” standards.  What that means is, the PPE standards do not proscribe specific PPE for specific circumstances.  Rather, the standards defer to employers’ reasonable judgment about what PPE is necessary, for which employees, in which circumstances.

The applicable standard, 29 CFR 1910.138(a), provides:

“Employers shall select and require employees to use appropriate hand protection when employees' hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.”

1910.138(a) is part of a series of standards regarding PPE for various parts of the body that stem from a general PPE requirement set forth at 1910.132(d)(1), which provides that:

Employers “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).”

Under the plain language of these regulations, and a long history of enforcement policies and OSH Review Commission case law, if employers perform a good faith hazard assessment in connection with the work activities and equipment at their workplace, and they conclude based on that assessment that employees are not exposed to laceration/amputation hazards or that cut-resistant gloves are not appropriate PPE, and the conclusion is reasonable, then no citation should issue.

A July 3, 1995 Interpretation Letter issue by OSHA confirms this view of the PPE standards:

“What the employer is required to do is to perform a hazard assessment, and OSHA would expect that an employer will be particularly careful before considering that none of its employees in the listed occupations are exposed to hazards which necessitated the use of PPE.  In litigation, of course, it would be OSHA's burden to prove that a hazard assessment was not done.  OSHA also believes that a standard of objective reasonableness is implicit in the requirement, and that accordingly, OSHA could cite for an unreasonable assessment.  Again, the burden of proof would be on OSHA.”

Factors that will impact the reasonableness of an employer’s hazard assessment include:

1. The existence of past injuries (i.e., look for lacerations or amputations on past OSHA 300 Logs);
2. Employee input (e.g., employees generally dislike gloves in this context because they sacrifice feel and dexterity of their fingers in relation to the blade); and
3. The presence of other controls that protect against cuts, such as administrative safe cutting procedures and training, or engineering and equipment controls.

Last year we wrote a post on the OSHA Law Update blog regarding one very significant, recent case impacting this PPE analysis -- Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).

The scenario of a group departure to a competitor is one that arises time and again in the financial services industry, from trading desks to private wealth management teams.  These cause significant concern and anxiety for the employer from whom the employees depart, but also some concern and risk for the hiring employer.  Often the teams quit all at once, but sometimes, in an attempt to avoid claims of violations of fiduciary duties or non-poaching clauses, teams have the junior members resign first and the senior members follow later.  Our colleagues at the Trade Secrets & Noncompete ...

By:  John F. Fullerton III

On March 5, 2013, the U.S. Second Circuit Court of Appeals clarified the burden-shifting framework applicable to whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.  In Bechtel v. Administrative Review Board et al., (pdf), the Court issued a decision, consistent with prior decisions of several other Circuits, that affirmed the burden of proof standard applied by the Administrative Review Board (ARB) in its decision, which affirmed an administrative law judge’s (ALJ) decision that had dismissed the ...

By:  John F. Fullerton III and Matthew J. Tronzano

Mandatory class action waivers may have received an important seal of approval as the result of a recent decision arising in the financial services industry.  On February 21, 2013, a Financial Industry Regulatory Authority (FINRA) disciplinary hearing panel permitted Charles Schwab & Company, Inc. to maintain its predispute arbitration provision in its customer agreement that includes a class action waiver (pdf).  With this development, now may be the time for firms to evaluate and consider class action waivers in their arbitration ...

By:  Kara Maciel and Elizabeth Bradley

On March 8, 2013, amendments to the Family and Medical Leave Act (“FMLA”) take effect which change the provisions governing military caregiver leave for veterans, qualifying exigency leave for paternal care, and job-protected leave for airline personnel and flight crews.

Relevant to hospitality employers, the amendments extend the right to take military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expand the definition of a serious injury or illness to ...

In March of last year, we answered five frequently asked questions related to OSHA inspections.  After receiving much positive feedback about that post and a few new OSHA inspection-related questions, we decided to launch a regular series on the OSHA Law Update blog with posts dedicated to OSHA Frequently Asked Questions.  For each post in this OSHA FAQ Series, we include both a text response and a video/webinar with slides and audio.

In last month’s OSHA FAQ #4 we talked about the importance of and strategies for establishing an internal OSHA Inspection Team.  In this month’s OSHA FAQ ...