3-20-12; NRLB Government Poster—following up on last week’s KC&A Update article, we have learned you have to post but you don’t have to buy one!

After our article last week and your comments and requests, we did more research and note you have to post this new poster but it is relatively easy to access it off the web. Please note it has to be posted at both union and non-union worksites.

The following is copied and pasted from the NLRB website or www.nlrb.gov/poster which says

• The poster is required to be 11 x 17 inches, in color or in black-and-white.
• When printing to full size, be sure to set your printer output to 11 x 17.
• Or you may print the two 8.5 x 11 pages and tape them together.

English version – click on the link

§  Employee Rights Under the NLRA poster, two-page 8.5 x 11 version (pdf)

§  Employee Rights Under the NLRA poster, 11 x 17 version (pdf)

Spanish version – click on the link

§  Spanish language poster - two-page, 8.5 x 11 version (pdf)

§  Spanish language poster - 11 x 17 version (pdf)

Does my company have to post the notice?

All employers that fall under the Board's jurisdiction, other than the U.S. Postal Service, must post the notice of employee rights. The Board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. Over the years, it has established standards for asserting jurisdiction, which are described below. As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.

·         Retailers
Employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more. This includes employers in the amusement industry, apartment houses and condominiums, cemeteries, casinos, home construction, hotels and motels, restaurants and private clubs, and taxi services. Shopping centers and office buildings have a lower threshold of $100,000 per year.

·         Non-retailers
For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state (“outflow”) or purchased by the employer from out of state (“inflow”). Outflow or inflow can be direct or ‘indirect’, passing through a third company such as a supplier. The Board takes jurisdiction when annual inflow or outflow is at least $50,000.

·         Special categories
Channels of interstate commerce: For businesses providing essential links in the transportation of goods or passengers, including trucking and shipping companies, private bus companies, warehouses and packing houses, the minimum is $50,000 in gross annual volume.

·         Health care and child care institutions: Hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of at least $250,000 are under NLRB jurisdiction; for nursing homes and visiting nurses associations, the minimum is $100,000.

·         Law firms and legal service organizations: The minimum is $250,000 in gross annual volume.

·         Cultural and educational centers: For private and non-profit colleges, universities, and other schools, art museums and symphony orchestras, the annual minimum is $1 million.

·         Federal contractors: Federal contractors are required by the Department of Labor to post a similar Notice of Employee Rights under the NLRA. There is no need to post an additional poster; the DOL poster will satisfy the NLRB’s requirement.

·         Religious organizations: The Board will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools. The Board has asserted jurisdiction over employees who work in the operations of a religious organization that did not have a religious character, such as a health care institution.

·         Indian tribes: The Board asserts jurisdiction over the commercial enterprises owned and operated by Indian tribes, even if they are located on a tribal reservation. But the Board does not assert jurisdiction over tribal enterprises that carry out traditional tribal or governmental functions.

The following employers are excluded from NLRB jurisdiction by statute or regulation:

§  Federal, state and local governments, including public schools, libraries, and parks,

§  Federal Reserve banks, and wholly-owned government corporations.

§  Employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities or prepare commodities for delivery.

§  Employers subject to the Railway Labor Act, such as interstate railroads and airlines.

You have to post this new poster in your worksite(s) on and after April 30, 2012. If you want a free poster that complies with Federal law, send a reply and we will forward a laminated copy at no charge. Please feel free to reply with questions or concerns.

3-20-12; Chartis, a division of The American International Group (AIG), will no longer write stand-alone excess workers' compensation coverage, said AIG, in a U.S. Securities and Exchange Commission..

We again thank another reader for this blast. For those of us involved in the management of workers' compensation, the three reasons for Chartis' decision are noteworthy:

Ø  Workers' compensation coverage has an extremely long “tail” and is challenging to reserve.

Ø  The reserving is sensitive to small changes in assumptions.

Ø  In response to health care reform, cost-shifting to workers' compensation may occur.

For lawyers in the defense trenches we are thrilled in the hope we will no longer have to deal with the “AIG approved list” where someone in a corporate tower in New York tried to analyze the Illinois defense community and determine who the best defense firms might be. We still remember convincing their management group one of the Illinois firms on their limiting list was a claimant firm—they removed the firm from their list but wouldn’t make any other changes to add another defense firm!

Your editor spent most of the decade of the 1990’s going out to AIG, now Chartis headquarters to discuss and market them. The only good thing that came from such trips was the New York Yankees usually won the World Series whenever we made the trip.

We are aware of another national excess insurance carrier that vetted hundreds of defense firms and built a similar national “approved counsel” list. Having done so, they later made the decision to randomly drop a number of firms without any new research or basis for the exclusionary process. We hate to see the major players in our defense industry act in such fashion and assure our readers it is one of the most painful aspects of defense practice.

Our request to all national insurers who want to manage such defense attorney lists—please do it carefully and with consideration for the lives they affect. We appreciate your thoughts and comments.

3-20-12; New OSHA memo Puts Accident Reporting and Safety Incentive Programs Under Vague/Ominous Federal Spotlight

We thank our reader for sending this OSHA memo along for the rest of us to struggle with moving forward. We hope the next administration isn’t so strident about messing with U.S. employers. If you would like a copy of the new OSHA memo, send a reply.

On March 12, 2012, OSHA’s Deputy Assistant Secretary Richard Fairfax issued a memorandum on the subject of employer safety incentive/disincentive policies. In our view, it is long on policy and woefully short on specifics. We assume OSHA isn’t going to penalize insurance carriers and TPA’s for cutting insurance premiums when lower injury levels result in lower premiums but you never know—if all the stuff below is “discriminatory,” we think that simple financial concept might also be viewed in the same light.

In it, the memo indicates Section 11(c) of the OSH Act prohibits an employer from ‘discriminating’ against an employee because the employee reports an injury or illness.

Deputy Secretary Fairfax indicates reporting a work-related injury or illness is, in OSHA’s view, a “core employee right.” We don’t remember that one in the U.S. Constitution’s Bill of Rights. Mr. Fairfax further advises ‘retaliating’ against a worker for reporting an injury or illness is illegal discrimination under section 11(c). He further states

If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.

Well, duh. The memo states there are several types of workplace policies and practices that discourage reporting and constitute unlawful discrimination. The memo ominously outlines “some” of these policies and practices may also violate OSHA's recordkeeping regulations, particularly the requirement to ensure employees have a way to report work-related injuries and illnesses.

OSHA also claims there is a potential for unlawful discrimination under all of these policies that may increase when management/supervisory bonuses are linked to lower reported injury rates. The memo states: “[w]hile OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” The operative term in that sentence is “encourages discrimination”--from our business perspective, we feel OSHA is reading something negative into a common safety technique of having risk and safety managers incentivized to provide safer workplaces.

Most important, the memo outlines what the Deputy Secretary denotes as the “most common discriminatory policies”

v  An employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason an employer may advance to justify adverse action against an employee who reports an injury. In addition, such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries and where it is encountered, a referral for a recordkeeping investigation should be made.

v  An employee who reports an injury or illness is disciplined and the stated reason is the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. Please note we have numerous employers who have “same-shift” or 24-hour reporting requirements.

o   The memo indicates “such cases deserve careful scrutiny. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c) or FRSA.”

o   The memo also indicates “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.” Please note claimant attorneys across the U.S. are now certain to tell all of their clients who report events late to say they didn’t think the injury was serious enough to report, even when they lose a toe.

v  In a third situation, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. OSHA’s focus is various

o   Does the employer monitor for compliance with the work rule in the absence of an injury?

o   Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury?

o   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. Where such general safety 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.

v  Finally, some employers establish programs that unintentionally/intentionally provide employees an incentive to not report injuries. 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.

o   Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices.

o   However, OSHA feels 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".

o   OSHA's VPP Guidance materials refer to positive incentives, including providing T-shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.

o   Incentive programs that discourage employees from reporting injuries are problematic because an employer may not "in any manner discriminate" against an employee because the employee exercises a protected right, such as the right to report an injury.

o   An important factor to consider is whether the incentive involved is of sufficient magnitude that failure to receive it "might have dissuaded reasonable workers from" reporting injuries.

Where OSHA may be going with enforcement of this memo is anyone’s guess. We don’t think the government should tell U.S. business how to run safety programs and what kind of safety bonuses and what color safety t-Shirts to give out. We understand there may be differing views on this controversial topic--we appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.