Case Study 1
A Chattanooga-based employee hit his hard hat against a support beam and reported the injury. The railroad conducted a hearing and terminated him for falsifying his injury. When the employee appealed, OSHA found that the investigative hearing was severely flawed and was clearly intended to support management’s decision to fire the employee.  The US Labor Department ordered Norfolk Southern Railway Company to pay more than $300,000 to the employee for violating the whistleblower protection provisions under the Federal Railroad Safety Act.

Case Study 2
A Seattle employee working for T-Mobile raised concerns about the possibility – only the possibility - of millions of dollars in fraudulent roaming charges. The employee was terminated shortly afterwards, which resulted in an investigation by OSHA. Because employees are protected from retaliatory actions from employers, T-Mobile was ordered to reinstate the whistleblower and was required to pay nearly $346,000 in back wages and damages to the employee.

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As an employer, your actions are regularly being questioned by employees.  If any personnel actions are motivated or caused by an employee’s protected activity (such as filing an OSHA complaint, cooperating with inspectors, or identifying potential fraud), you may find yourself battling a lawsuit.  Especially be cautious with actions or behaviors such as:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidation
• Reassignment affecting promotion prospects
• Reducing pay or hours

Be sure you have well-documented reasons before moving forward with any personnel actions, and always seek guidance from your ESG Human Resources Consultant.  For more information on whistleblower rights, see the OSHA Whistleblower Rights Sheet.

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Answer: Yes, but there may be restrictions. Employers can only withhold wages from an employee’s paycheck when empowered or required by state or federal law, or when the employee has provided written authorization.

When employers require employees to pay or reimburse the employer for items that benefit or convenience the employer, the deduction cannot reduce the employee’s earnings below minimum wage or overtime compensation. However, the deductions can be prorated over a period of paydays. These types of deductions would include those for tools, uniforms, damage to the employer’s property, etc.

In the event of elective contributions (such as charitable donations, union dues, or insurance premiums), the deductions can reduce the employee’s earnings below minimum wage/overtime compensation levels.

For more information, please contact us.

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Answer: Regardless of protected class, you should treat every employee consistently and fairly.

When there are performance problems, the employee needs to know; otherwise, the subpar performance will appear to be acceptable behavior and your case for termination for performance problems will become cloudy. Talk to the employee right away and document your conversation. If the problems are severe enough to warrant a written warning, be sure to save a copy in the employee’s file.

Be sure to follow-up with the employee to monitor improvement. If there are still performance problems after having gone through a full course of progressive corrective action, it may be time to terminate employment. For more detail on how to structure corrective action, see “Corrective Action: Using Progressive Discipline.”

A good general rule is that a poor performing employee should never be surprised when terminated, regardless of race, ethnicity, religion, gender, sexual orientation, age, marital status, national origin, disability, or any other protected class.

If the employee was (at one time) able to perform at an acceptable performance standard, and you have documentation of this acceptable performance, then you may not be responsible for unemployment benefits. However, if the employee has never demonstrated satisfactory performance, then you may have made a poor hiring choice in the first place, and you probably will be held accountable for unemployment benefits. However, don’t let that hold you back from cutting ties, as a poor performer can have a much more harmful long-term effect on production, morale, and your time (both on and off the clock).

In the event a lawsuit is filed after terminating an employee, and you’ve treated the employee as you have every other employee who was fired for poor performance (and you have documentation to show proof), then relax. You can never guarantee a former employee won’t file a lawsuit (or threaten to do so), but if you have sound and well-documented progressive discipline practices, you can guarantee the outcome.

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Being proactive with workplace wellness helps employers manage high health care costs, as well as improves employee morale and the overall health and awareness of employees.  Encouraging employees to embrace fitness as a lifestyle pays off for any organization in a number of ways, as fit employees:

  1. Are less likely to get sick (five times lower sick leave) and generally more resistant to the "bug going around."
  2. Have more energy, maintaining focus on the task at hand.
  3. Have more self-confidence because of their physical fitness accomplishments.
  4. Inspire confidence in those around them.
  5. Tend to take on more leadership roles.
  6. Have acquired the skills to set and achieve goals, carrying this over to their jobs.
  7. Tend to have better attitudes because they generally "feel good" due to their physical and mental "balance."
  8. Are less stressed because regular exercise releases the physical and emotional tensions of life.

Don’t assume that working in a physical job is a substitute for exercise.   Employees should still incorporate personal fitness into their routines, as stretching, working out, eating a balanced diet, and getting sufficient sleep are all part of a healthy lifestyle.  According to a survey conducted by Watson Wyatt and the National Business Group on Health, companies that incorporate health and wellness incentives experience health care cost increases at a greatly lower rate than other employers, and have three and a half times lower general health coverage.  In addition, a fit employee base provides excellent team-building opportunities (such as a company softball team) which are great ways to build camaraderie and discover new ways of working together. 

If you haven’t yet incorporated a health and wellness initiative for your company, you may be missing out on a number of benefits.  If you have implemented a program, find incentives to boost participation, as employee turnover is significantly lower among employees that take advantage of their company wellness programs.

For more information, please contact one of HR Consultants.

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One June 15, 2012, the Department of Homeland Security (DHS) issued a memo stating that certain qualified individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and to apply for work authorization. Unfortunately, there has been no further guidance for employers about work permits or changes to Form I-9 for those who qualify. U.S. Immigration and Customs Enforcement (ICE) and the U.S. Citizenship and Immigration Services (USCIS) have until mid-August to implement the application process. Stay tuned…

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