Investigations/Inspections

By Steve Shardonofsky and John P. Phillips

Time WarpSeyfarth Synopsis:  The U.S. Fifth Circuit Court of Appeals recently held for the first time that the continuing violation doctrine applies even when a plaintiff was subject to harassment that was severe enough to put the employee on notice of the duty to file a complaint.  The lower court will now consider conduct many years outside of the 300-day limitations period under Title VII. This decision alters prior Circuit precedent, widens the reach of the continuing violation doctrine, and serves as warning for HR professionals and litigation counsel.

Unlike discrete acts of retaliation or discrimination, conduct that may support a hostile work environment claim often occurs over a period of time and cannot be said to occur on any particular day.  Because of this difference, most courts have long recognized the “continuing violation doctrine,” which essentially says that as long as one harassing act occurs within the filing period, the entire time period of the hostile work environment may be considered by the court for the purpose of determining liability.

In Panagiota Heath v. Southern University System Fdn. et al., a university professor (Heath) alleged that she was subject to ongoing harassment because of her sex by her immediate supervisor as far back as 2003.  The alleged harassment included having her re-write exams, coercing students to make complaints against her, denying her request for a sabbatical, telling her that he did not believe she was capable of writing a book, and excluding her from meetings because she talked “too much for a woman.”  Heath initially filed a lawsuit in Louisiana state court in 2009 alleging sex discrimination, but the suit was dismissed when she stopped pursuing it. She then took a sabbatical in 2010-2011 for job-related stress, but alleged that the harassment continued after she returned to work, including being subject to belittling comments and intimidating conduct from her supervisor. More than 200 students signed a petition asking for Heath to be changed to a “non-hostile” and “non-harassing” work environment.  Heath complained about the conduct in 2009 and 2012.  But there was no indication that the University responded.  In early 2013, she filed a charge with the EEOC and eventually filed her second lawsuit.

The district court granted summary judgment to Southern University on Heath’s hostile work environment claim, holding that she could not rely on any conduct that occurred outside of the limitations period (300 days before filing her EEOC charge) and that the conduct inside the limitations period was not sufficiently severe or pervasive to establish a claim. The district court relied on the Fifth Circuit’s Celestine v. Petroleos de Venezuella (Celestine I) decision from 2001, which addressed the continuing violation doctrine and required courts to consider numerous related factors, including whether “the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights.” Under Celestine I, if the harassing conduct was sufficiently severe to put the employee on notice of the need to file a complaint, the employee typically could not rely on the continuing violation doctrine.  Rather than wait until 2013, the district court found that Heath should have filed a claim in 2011 when the harassment continued after her sabbatical.

The Fifth Circuit reversed and remanded, acknowledging for the first time that the Supreme Court’s 2002 National R.R. Passenger Corp. v. Morgan decision overruled Celestine I to the extent that the Fifth Circuit and other Circuits held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.”  Thus, at least in the Fifth Circuit, the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is no longer relevant.  Nevertheless, courts are left with other factors to consider in deciding whether apply the continuing violation doctrine, including (1) whether the separate acts are related, (2) whether any intervening acts by the employer “severed” the acts that preceded it from later conduct, and (3) whether there are any equitable factors that should prevent the court from considering the full scope of the continuing conduct.  Based on these other factors, the Fifth Circuit found that Heath had properly alleged a continuing violation and remanded for a determination about whether the claim relating to conduct since 2011 could survive summary judgment.

The case is a cautionary tale for HR professionals and litigation counsel, and a reminder that over-reliance on the statute of limitations in hostile work environment claims is not an ideal tactic.  Because stale internal complaints and allegations going back many years can be revived in subsequent litigation, HR professionals and employment counsel should take care to always accurately and thoroughly document employee complaints and related investigations, take prompt and effective remedial action when appropriate, follow-up with the complainant, and consider what other actions to take in order to “sever” or “break” a possible continuing violation.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment Team.

By Wan Li, Andrew S. Boutros, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: The Chinese Ministry of Environmental Protection has just announced criminal, civil, and administrative enforcement statistics, and put companies on notice that those who violate environmental laws and rules may face blacklisting, including restrictions to their future business endeavors.

We have previously written about the need for multinational companies operating in China to comply with Chinese environmental and workplace safety laws and regulations. See for instance Multinationals in China Should be Aware of Increased Enforcement of Environmental Law, Monitoring Requirements – and Fraud, and International Employers Watch Out: China Will Assign Hefty Fines for Worker Safety Violations.

Now more recently, in the last thirty days, the Ministry of Environmental Protection (MEP) in the People’s Republic of China (PRC) has been publishing notices and warnings to “polluters” and industries about their potentially non-compliant business activities.

For example, the MEP’s just-released news announcement summarizing enforcement actions makes clear just how serious China is taking compliance failures of environmental laws and rules. Specifically, the August 1, 2016, notice, Supreme People’s Court Releasing White Paper on China’s Environmental Resource Trial, provides a progress report “since the establishment of Environmental Resource Courts.” In this regard, the notice provides the following eye-popping statistics about China’s enforcement activities from January 2014 to June 2016 by its courts nationwide:

  • A total of 37,216 criminal cases of first instance trial involving air, water and soil pollution that brought 47,087 people to justice;
  • A total of 195,141 civil cases of first instance trial involving resource ownership, environmental infringement and contract disputes; and
  • The conclusion of 57,738 administrative cases of first instance trial involving the environment and its resources.

Only a few days earlier, on July 28, 2016, the MEP, together with 30 other government agencies, issued another announcement warning companies that those who seriously violate environmental laws and rules will face restrictions to their future business endeavors. Specifically, companies may be barred from entering certain businesses, blocked from applying for business permits, or disqualified from loans. In the words of the MEP, “[t]hey will not qualify for preferential policies.” The MEP also highlights 14 serious violations, including operating or engaging in construction work without environmental assessments or permits, and illegally discharging pollutants.

The MEP notes that it will manage a blacklist of companies with “bad environment records” and will share it with other government agencies.

In fact, in what can be viewed as a prospective “industry sweep,” on July 28, 2016, the MEP announced a “national-scale environmental inspection” in the iron and steel industry. The notice states that local areas will be required to strengthen enforcement activities and inspections in this industry, as well as “make effort to reveal, solve, and expose a batch of prominent environmental violations in this industry.”

According to Tian Weiyong, Director General of the Ministry’s Bureau of Environmental Supervision and Inspection, under this program, local areas are required to organize inspectors and inspections involving the “main firms in the iron and steel industry” within their administrative regions. The inspections will also assess how well the iron and steel makers have “attained emission standards and installed and run the automatic monitoring equipment.”  The inspections are slated to occur between June and October 2016.

Multinational businesses and industries that have interests and facilities in China–especially now in the iron and steel industries– may wish to examine the extent of any potential liability in their holdings, in particular since companies with “bad environment records” may be subject to business-disrupting (if not ending) blacklisting.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the International Employment Law Team, the Environmental Compliance, Enforcement & Permitting Team, or the White Collar, Internal Investigations, and False Claims Team.

 

 

 

 

By Adam R. Young and Craig B. Simonsen

Violence, often involving firearms, is an increasingly common occurrence in the 21st century workplace.  The Federal Bureau of Investigation notes that even though homicide is “the most publicized form of violence in the workplace, it is not the most common.”

The FBI defines workplace violence as “any physical assault, threatening behavior or verbal abuse occurring in the work setting.” While some types of these acts “may not be interpreted immediately as violence … many people will witness them in their lifetimes.”

The FBI warns that it is “vital that employers create a sense of hypervigilance in their employees by providing formal training in workplace violence prevention.” To help employers prevent workplace violence, the U.S. Department of Homeland Security (DHS) has recently released an “Active Shooter Preparedness” website intended to make training and other resources available to employers.

Of particular interest are the Active Shooter Webinar materials, including a ninety minute Webinar that the DHS has provided for the private and public sector to “understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter.” Emphasis added. These Webinar materials include specific tools designed to aid employers in creating and updating policies and procedures to prevent and respond to active shooter scenarios.

Issues covered in the materials include the following:

  • Profile of an active shooter;
  • Responding to an active shooter or other workplace violence situation;
  • Training for an active shooter situation and creating an emergency action plan; and
  • Tips for recognizing signs of potential workplace violence.

The materials include a desk reference guide, a reference poster, and a pocket-size reference card.

By utilizing these materials, employers may help prevent harmful workplace violence incidents. Conflict resolution training and employee assistance programs can help reduce the likelihood of workplace violence and active shooter scenarios.  Employee training and emergency preparedness can help minimize the harm from incidents and ensure that employees safely exit the workplace.

These measures also will help insulate employers from negligence claims alleging a failure to maintain a safe work environment for employees. Consider also that under the Occupational Safety and Health Act, employers must protect employees from known hazards in the workplace.  Employers who fail to implement measures to prevent workplace violence may face citations and increasingly aggressive OSHA enforcement actions.

Accordingly, employers should review DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For further information, please contact the author(s), or your Seyfarth attorney.

 

 

 

By Hillary J. Massey

iStock_000048141232_LargeEmployees’ social media activities often play a key role in workplace investigations.

For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter regarding race, religion, or disability. Employers handling investigations into such conduct should be aware that state laws may restrict employers’ requests for information about an employee’s social media activity.

Fifteen states have passed, and many other states have considered, laws addressing whether and how employers may access employees’ social media accounts. The laws, in varying degrees, prohibit employers from requiring employees and applicants to provide access to their social media accounts through username/password disclosures, by requiring them to open their page in a manager’s presence, or by requiring them to “friend” a manager. While some states explicitly permit access during the course of an investigation into employment-related misconduct, others do not address the issue. Courts have had few opportunities to interpret the laws.

A recent case in Mississippi demonstrates how social media activity may become part of an investigation. Although the case involves a public school, and thus constitutional rights that are not applicable to private employment, the facts are similar to common workplace issues. The case was brought against a school and teachers by the parents of a high school student who was suspended from the cheerleading team as a result of her social media posts. A teacher who had received reports from students that the plaintiff sent threatening Facebook messages to another student required all of the members of the cheerleading squad to give her their Facebook usernames and passwords. She inspected their accounts, determined that the plaintiff’s messages were threatening, and suspended the plaintiff from the team for two weeks.

The lawsuit alleged that the Facebook search violated the cheerleader’s constitutional rights to privacy and freedom of speech. After the lower court refused to dismiss the lawsuit on summary judgment, the appellate court reversed, concluding that the teacher and school were entitled to “qualified immunity” (and thus, not liable) for the Facebook search because the law concerning students’ rights to privacy was not clearly established at the time.

While there is no “qualified immunity” for private employers, employers may find themselves investigating similar allegations. And, like the teacher, employers may be inclined to demand account information to further their investigations. While this is permissible in some states, the law remains unclear in the majority of states. Thus, employers should consider training managers and human resources representatives who handle such investigations to be sure they understand the limits of their authority.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference” as a starting point for employers faced with workplace investigations and other social media privacy issues. Contact the author, your Seyfarth attorney, or any member of the Social Media group with any questions.

bogBy Mark A. Lies, II and Craig B. Simonsen

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplaces.  Two recent cases illustrate the competing liabilities that employers face in their decision-making as to how to respond to workplace violence.

In one case, decided by the United States Court of Appeals for the Ninth Circuit, the employer, a superalloys casting company, chose to fire an openly hostile employee making death threats to avoid potential injury to its employees, and face the prospect of costly litigation including an Americans with Disabilities Act (ADA) lawsuit.

In the other case, decided by an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, a healthcare company did not perceive or protect a social service coordinator, who was tragically fatally stabbed outside the client’s home, from the hazard of workplace violence.

Employer Response to Violence Upheld

In the first case the plaintiff appealed from the Federal District Court’s grant of summary judgment in favor of his former employer on his claim of discrimination in violation of Oregon disability law. Mayo v, PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015) (Mayo).

The District Court concluded that because the plaintiff, Timothy Mayo, had threatened to kill his co-workers, including his supervisor, he was not a “qualified individual” under section 659A.112 of the Oregon Revised Statutes, which is Oregon’s counterpart to the Americans with Disabilities Act (ADA). The District Court indicated that in following the decisions of numerous other Circuit Courts, Mayo was no longer a “qualified individual” once he made his “violent threats.” Because Mayo was not a qualified individual in the eyes of the court, he was not “entitled to protection under the ADA and Oregon’s disability discrimination statute.”

In its discussion affirming the lower court decision, the Circuit Court of Appeals found that even if the plaintiff were disabled (which it assumed was true for the appeal), “he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others.” For instance, in a frightening recitation of the court record, the plaintiff told a co-worker that he “‘fe[lt] like coming down [to work] with a shotgun an[d] blowing off’ the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.”

After these statements were reported to company management a timely investigation was conducted. Written statements were obtained from co-employees regarding the threats. When the plaintiff was asked by management if he planned to carry out these threats, the plaintiff responded that “he couldn’t guarantee he wouldn’t do that.” The company management immediately suspended the plaintiff’s employment, barred him from company property, and notified the police.

After the plaintiff’s suspension and being interviewed by the police, he was voluntarily admitted to the hospital because he was deemed to pose a danger to himself and to others. He remained in custody for six days, and then took a leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA) for two months. Near the end of his leave period, a treating psychologist cleared him to return to work, writing that he was not a “violent person,” but recommended a new supervisor assignment. While the parties dispute the timing, the employer decided to terminate the plaintiff during his medical leave. The company determined that his threats were of such severity that he was unqualified to work with any supervisors or co-employees and that it could not expose its employees to potential workplace injury.

In response the plaintiff brought this case, seeking damages. The District Court granted the employer’s motion for summary judgment, and the Circuit Court of Appeals affirmed.

Employer Response to Threatening Conduct Found Inadequate

In the second case, an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, Dennis L. Phillips, issued an opinion that a healthcare company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015) (Integra).

The employer in this case, Integra Health Management, Inc. (Integra), provided mental and physical health assessments and coordinated healthcare/case management services for insureds of insurance companies. One of its employees was a 25 year old newly- hired Service Coordinator (SC) with about three months on the job. The employee had no prior experience in the community health or social worker industries. The employee did not have an office at the company but instead worked out of her home. She also used her computer, a phone, and car to travel to client’s homes.

In October 2012, the employee planned to drive out into the field to a client’s apartment, to make an unscheduled visit. The client was a diagnosed schizophrenic, who was on the employee’s list of clients, known as “members,” for which she was responsible. The client had a history of violent behavior, and had been convicted of violent crimes and incarcerated for many years. The employee was not advised about the client’s history of mental illness or violent behavior when he was assigned to her. The employee had made several attempts to contact the client by telephone, which were unsuccessful.

As planned, the employee visited the client in October 2012 by going to his house unannounced. She introduced herself and the company and arranged a return visit to conduct an initial assessment. The employee reported in her progress note report for that day that during their conversation, the client “said a few things that made [her] uncomfortable, [she] asked [the client] to be respectful or she would not be able to work with him.” She also documented in her progress note report that “[b]ecause of this situation, [she] is not comfortable being inside alone with [the client] and will either sit outside to complete assessment or ask another SC to accompany her.”

A number of subsequent meetings and conversations occurred between the employee and the client including further notes in the employee’s progress note report regarding her concerns. In December 2012, the employee was fatally stabbed by the client during her visit to his home.

Following the incident the Occupational Safety and Health Administration (OSHA) issued two citations to Integra Health Management, Inc., claiming a violation of the General Duty Clause, section 5(a)(1), of the OSH Act, and a violation of OSHA’s injury reporting standard. Specifically, the General Duty Clause citation alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior.

The Judge determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

What are the Legal Ramifications that Employers Should Consider?

In Mayo the employer took steps to protect its employees from threatened harm by conducting a timely investigation, suspending and eventually terminating the aggressive and threatening employee. The company’s actions forced it to respond to discrimination claims under the ADA that initially were filed in state court, and removed to federal court. While the employer prevailed in the District Court and Circuit Court, the company undoubtedly spent considerable sums defending the suits. While this litigation was very time consuming and expensive, the employer avoided a tragic outcome.

Unfortunately in Integra the employer did not respond to or take any actions to address any sense of fear or anxiety mentioned in the employee’s client visit notes. A serious OSHA violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken precautions to prevent injury by developing a meaningful written policy, hiring and training its employees appropriately and responding to complaints in a timely manner. While the company only faced an OSHA fine of $7,000 in proposed penalties for the General Duty Clause violation, it sustained the tragic loss of an employee, as well as a worker’s compensation death suit.

Recent OSHA Guidance

The Mayo decision may give some sense of security to those employers that make hard choices for what it believes are the right reasons, that is, for employee safety. But choices are not always easy, and the resulting actions can be costly.

The Integra decision is timely in view of another recent OSHA action relating to the healthcare industry. Recently OSHA released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that workplace violence is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, workplace violence will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers in other industries can be certain that they will also be inspected by the same OSHA inspectors as healthcare workplace violence incidents occur, regardless of the setting, including non-healthcare workplaces as well. The Guidance was effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

Recommendations

Against this potential liability scenario, an employer must develop an effective written workplace violence policy which must be communicated to all employees if it hopes to have any defense against these potential claims and to prevent a tragic incident. At a minimum, the written workplace violence prevention policy should include the following elements:

  • Stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;
  • Statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;
  • Establish a means to promptly investigate all such threats or violent acts;
  • Develop consistent, firm discipline for violations of the policy;
  • Provide training for managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported immediately to the employer;
  • Establish a team of qualified individuals (e.g., human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and
  • Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.

If you have any questions regarding this article, please contact any of the authors, or your Seyfarth attorney.