How to Reduce the Risk of Workplace Violence

Each year, nearly 1.5 million workers are injured by violence in the workplace according to the National Crime Victimization Survey. We see it too often on television news. This article does not presume to offer an explanation for the prevalence of workplace violence or recommend remedial measures. It is only meant to contribute to an awareness of the problem and to offer some suggestions for what you can do on an individual basis to work safely.

Awareness of one’s surroundings is the single most important aspect of workplace safety. Has a co-worker been expressing her fear of an abusive and violent spouse? Do you see someone in the building who does not belong like a disgruntled former employee? Awareness of the potential for harmful situations may afford crucial time for intervention before violence occurs.

Act on your awareness. I do not suggest you confront a potentially violent individual. You may unwisely expose yourself to harm and escalate a situation. But picking up a phone and dialing 9-1-1 is action. Expressing your concerns to management about adequate security is action.

Prepare for a potential situation. In crises, people who have a plan of action are much less likely to panic. Many schools and larger workplaces have “lockdown” drills to familiarize staff as to what to do in an emergency situation. Even if your employer doesn’t have a plan, you can create a simple one on a 3×5 card, keep it in your desk drawer, and look at it from time to time. Steps to include are calling 9-1-1, identifying the closest exit or a secure hiding place, and locking doors or creating other barriers to deny an intruder entry into your workspace.

If you are in management, there are additional steps you may take to reduce the potential of violence among employees. Speak frequently with staff and make sure everyone feels they are being heard. Be alert for employees who are loners, complain often of unfair treatment and show signs of irrational behavior. Look for employees who show signs of substance abuse. Every workplace, no matter how small, should have a written workplace violence prevention policy and ensure that employees adhere to it.

In the National Crime Victimization Survey I mentioned at the beginning of this article, five of the top fifteen at-risk job categories for workplace violence are teaching positions, including elementary school teachers (No. 14). (Junior high school teachers are highest at No. 10). While it is difficult to conceive of a nurturing classroom environment having a high risk for violence, one need only recall the tragedy at Sandy Hook Elementary School in Connecticut. Every mad act of violence cannot be prevented, but perhaps with greater awareness and preparation, more of them can.

Straight Talk on Disability Benefits

Most people who have disability benefits receive them through their employers. Generally, short term disability (STD) covers the first 26 weeks of absence from work for a disabling condition. Long term disability (LTD) may be available until age 65 for disabilities lasting longer than 26 weeks as long as the person meets the criteria for being totally disabled.

Since the terms of both STD and LTD plans may vary widely, the first essential step for anyone applying for benefits is to obtain a copy of the summary plan description (SPD). The SPD is a booklet or online document the employer must provide outlining the plan details in plain English. If you do not have a copy of the SPD, ask your human resources representative.

The second essential step when applying for disability benefits is to meet with your doctor to review the application. The doctor will be required to fill out an Attending Physician Statement. Be sure your doctor understands it is not enough to say you have a disabling condition. The doctor must be able to explain how the condition prevents you from performing the essential functions of your job.

For example, it is not enough to say someone is disabled because of low back pain. The doctor must describe how the low back pain prevents the employee from sitting at a desk long enough to work effectively, lifting objects the job demands, traveling, or other essential job functions. I recommend submitting to the insurance company with the application all the medical records supporting your application that you can gather along with a supporting letter from one or more treating physicians.

The transition from STD to LTD is a critical time to review your legal rights. Too often, employers are only too happy to encourage disabled employees to apply for LTD and then terminate their employment when they do not return to work. However, the insurance company, not the employer, determines whether LTD benefits will be granted. Employees may find themselves unemployed and without disability benefits because they failed to explore options for returning to work and the disability insurer has determined they are not disabled. The employer has an obligation to provide reasonable accommodations. Do not apply for LTD until you have explored options for returning to work or your disability is severe enough that your doctors will unwaveringly agree you can no longer perform your job.

Drug Testing Programs Require Careful Planning

Pennsylvania unemployment compensation law considers an employee’s refusal to submit to a drug test or a failed test grounds for denial of benefits without the employer having the additional burden of proving “willful misconduct.” However, to avail itself of the relaxed standard, the employer must adopt a drug testing policy that is not in violation of law or a collective bargaining agreement. The employer must communicate the policy to its employees and comply with the policy.

Simply putting a paragraph in a handbook that advises employees they may be asked to submit to a drug test is not enough. Careful consideration must be given to when a drug test may be appropriate. Upon hire? After an accident? Upon reasonable suspicion that a person may be under the influence of a controlled substance? Should the employer implement random testing for all employees in safety sensitive positions? These are all important considerations that should be resolved before a policy is drafted. Drug testing policies should be tailored to the needs of the employer. An insurance agency with mostly clerical staff, for example, will not require as onerous a policy as a trucking company.

Once an employer decides when to test, it must also consider the manner and method for testing. Many employers contract with local clinics to conduct drug testing and often forget to inform the employees in the policy what to expect when they get there. There are a variety of tests and collection methods. The U.S. Department of Health and Human Services and the U.S. Department of Transportation both have manuals on drug testing that provide useful information to consider when drafting a policy and can be found on the agency websites. An employer need not adopt a policy that meets stringent HHS or DOT guidelines. However, a policy should inform employees under what circumstances they may be tested, what will happen when they are tested, and the consequences of a refusal to test or a failed test. Consultation with our office and medical professionals experienced in drug testing and sample collection prior to implementation of a drug testing program will enable an employee drug testing program to work effectively and withstand legal challenges.

Need assistance in an employment matter? Call our Yardley, PA office at (215) 493-8287 or contact us by email at scott@fegleylaw.com. We Give You Peace Of Mind.

 

Top 5 Things You Should Know About the Family Medical Leave Act (FMLA)

When it comes to employment law, it is vitally important that both companies and their employees know what each party’s rights are. Today’s post will focus on the Family Medical Leave Act, or FMLA. If you have any questions about your rights with regard to medical leave, please do not hesitate to contact me.

#1: What is the FMLA?

The FMLA is a federal law which entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons.  Some states, like New Jersey, also have their own Family Leave Act.  Pennsylvania does not.

#2: What is a Covered Employer?

The Department of Labor (DOL) defines a covered employer as one of the following:

• Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;

• Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or

• Public or private elementary or secondary school, regardless of the number of employees it employs.

#3: What makes an Employee Eligible for FMLA?

The DOL identifies eligible employees as those meeting the following four criteria:

• Works for a covered employer;

• Has worked for the employer for at least 12 months;

• Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave*; and

• Works at a location where the employer has at least 50 employees within 75 miles.

#4:  What Conditions are Covered?

  • A person’s own serious medical condition
  • To provide care for a child, spouse or parent with a serious medical condition
  • The birth of a child
  • Placement of a child through adoption or foster care

(For birth or placement of a child, leave is only afforded during the first twelve months after the birth or placement)

 #5: How is the FMLA enforced?

A person who believes they are entitled to leave and their leave was unlawfully denied or interfered with, or who has been retaliated against for taking or requesting leave, may seek relief through the Department of Labor or a private civil lawsuit.

The DOL has plenty of resources for those looking for more information about FMLA.  You can visit the DOL’s Wage and Hour Division website at http://www.wagehour.dol.gov or call their helpline at 1-866-4-USWAGE.

Got a question that we didn’t cover? Need legal advice? Call our Yardley office at 215-493-8287 or send us an email HERE

Court Enforces Noncompete Against Independent Contractor

While non-competition clauses are typically enforced in the context of employment agreements, a recent Pennsylvania Superior Court decision extended enforcement of a non-compete in the context of an independent contractor relationship.  In Metro Public Adjusters v. Houck, the defendant signed Metro’s standard independent contractor agreement for new adjusters which contained a non-competition clause.  The clause prohibited Houck from competing with Metro in the states in which Metro does business for two years after Houck’s relationship with Metro ended.  Even before Houck left Metro, however, he began setting up a competing company with two other Metro adjusters.  They created a limited liability company and set up a website.  Upon leaving Metro, Houck and his fellow adjusters sought the same business in states in which Metro was licensed until Metro obtained an injunction.  Judge Rubinstein of the Bucks County Court of Common Pleas held:

The covenant not to compete within the independent contractor agreement is de­signed to prevent an independent contractor from hijacking the training and experience garnered while affiliated with Metro [Public Adjustment Inc.] and utilizing it to create their own business to directly compete with Metro.  Indeed, this pre­cise situation occurred in this case.

Judge Rubinstein was particularly influenced by the evidence that Houck and his accomplices had no experience in public adjusting prior to their association with Metro and actively began plans to compete while still working for Metro.

On appeal, Judge Anne E. Lazarus of the Superior Court affirmed Judge Rubinstein’s decision and largely adopted his reasoning.  The court held that such non-competition agreements protect legitimate business interests and are enforceable.  Quoting from Rubinstein’s opinion, “

Metro provided the tools to be successful in the industry, including basic and advanced training, as well as their proprietary information regarding the best way to maximize profits on a claim.  All three defendants were very successful no doubt due to the opportunity, training and experience provided by Metro.

A close analysis of the Houck opinion, however, shows the courts did not have to reach that far to extend enforcement of the non-competition clause in this case.  Though Metro had the adjusters sign “independent contractor agreements,” the facts showed that Metro’s relationship with its adjusters was closer to employer-employee than true independent contractors.  None of the defendants had previous public adjusting experience.  They worked exclusively for Metro and followed Metro’s methods and instructions.  One wonders if the tables were turned and the adjusters were suing Metro for employee benefits or seeking unemployment compensation whether the courts would find Metro’s “independent contractor agreement” was really a contract of employment?

There is a cautionary tale in this story for both employers and employees.  Employers who use “standard independent contractor agreements” in situations that are more akin to traditional employer-employee relationships might find their agreement is a double-edged sword.  And employees who seek to get one up on their employer by    relying on legal loopholes to avoid agreements they sign might find the courts unwilling to open the loopholes for them.

If you have questions regarding independent contractor versus employee relationships or other legal matters, please call our Yardley office at 215-493-8287 or send us an email HERE. We will be glad to help.