Schaeffer Law Successfully Wraps Up OSHA Representation in Fatality Case

This week, Attorney Clayton Schaeffer successfully wrapped up his representation of a small local construction business who was recently investigated by OSHA and cited for alleged violations.

Tragically, this matter involved a death whereby an employee was fatally injured while on the job.  All parties involved were heartbroken and took this very seriously, especially the company owners.  Their humility and willingness to act proactively played a huge factor in the positive outcome we were able to secure.

We employed a few strategies that helped our client in this case.  Some of the tactics were:

  • Meeting with the assigned OSHA inspector and conducting a site visit in which Clay was present along with company ownership;
  • Correcting issues during the initial walk-through;
  • Proactively obtaining superior tools and equipment that we anticipated OSHA would require, based upon the nature of the fatality;
  • Drafting and implementing new company-specific safety and training policies, programs, and procedures;
  • Abiding by all OSHA deadlines and procedural requirements;
  • Maintaining an open line of candid communication with the OSHA inspector;
  • Preparing to formally file a Notice of Contest with an Administrative Law Judge;
  • Swiftly certifying abatement of all citations before the Informal Conference;
  • Requesting and participating in OSHA’s Informal Settlement Conference.

By doing the things above, in addition to various other routine tasks, we were able to substantially limit the number of Citations issued to only 2.  And, we were also able to put on evidence regarding the company’s size, revenue, and working months to take advantage of automatic fine reductions.  Finally, we were able to negotiate the fines down a significant percentage based on our client’s good faith effort put forth since the tragedy took place.

We have dealt with OSHA on various occasions and understand how stressful it can be and how out of the ordinary their inspections often are.  If you have been contacted by OSHA, fear that an inspection is imminent, or simply want to be proactive in making sure you are employing best practices, we are always available to be contacted for immediate consult.

Sexual Harassment is Not a New Thing

Sexual harassment has rightfully become an extremely hot topic in the news lately, even though it has always been a serious problem in society, especially in the workplace.  That being said, no amount of news coverage or number of empathetic individuals coming forward can make victims of sexual harassment feel less violated.  Acts of sexual harassment are inexcusable.  This is by far one of the most difficult topics I deal with as an attorney who defends employee rights in the workplace.  While no legal recourse can ever undo the violation that somebody has experienced, it can help put an end to it and punish the perpetrator.

Under Missouri law, sexual harassment is a form of gender discrimination covered by the Missouri Human Rights Act.  Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

Submission to such conduct is made a term or condition of an individual’s employment;

Submission to or rejection of such conduct by an individual is used as the basis of employment decisions affecting such individual;

Such conduct creates an intimidating, hostile or offensive working environment. This is where the sexual conduct is so pervasive or severe that it creates an abusive working environment.

Under Federal law, acts of sexual harassment are unlawful pursuant to Title VII of the Civil Rights Act of 1964.  The substance of the law itself is similar to that which is codified by Missouri statute.

Additionally, employers often get in trouble for retaliation in this context.  For example, somebody who is the victim of sexual harassment should report the conduct to HR, management, or whoever else the proper party might be identified as in the company procedures as soon as possible.  The employer cannot thereafter retaliate against the reporting individual by exhibiting any kind of adverse treatment, ranging from unfairly assigning work to outright termination of employment.  Retaliation is unlawful on its face.

At Schaeffer Law, we have the knowledge and experience to counsel you on sexual harassment and represent you zealously.  Those who come forward are always treated with honesty and respect.  And, always remember that any conversation you have with an attorney at Schaeffer Law is protected and confidential.

For more information on sexual harassment, check out our page dedicated to the topic.

The Issue with Arbitration

Last week, The Employee Rights Advocacy Institute for Law and Policy published a paper entitled “The Widespread Use of Workplace Arbitration Among America’s Top 100 Companies”.  The research was aimed at discovering how prevalent, and therefore limiting, arbitration agreements are for individuals employed by America’s largest companies. Professor Imre Szalai of the Loyola New Orleans College of Law, who authored the paper, determined that arbitration agreements are both commonplace and extremely limiting to employees.

Many companies impose certain restrictions on its employees by various means such as company policies and employment contracts.  Professor Szalai found that, among the Fortune 100 companies studied, 80 of them have used arbitration agreements in connection with workplace-related disputes since 2010.

In the event of workplace misconduct, arbitration agreements limit a person’s ability to bring his or her claim in court.  Often, these agreements set out a procedure for handling these disputes.  There are various versions of these procedures, but they generally set out a course for an investigation and determination, possibly followed by an opportunity for appeal.  Finally, there is always a clause forcing arbitration in the event that the issue isn’t resolved.  This means that a person’s ability to bring a claim in a court of general jurisdiction is limited.  In general, the decision made by the neutral arbitrator is final.

This is an issue that I run across from time to time. An individual who has an excellent case is barred from bringing a charge of discrimination or a petition for damages because he or she must see the case through the procedure set forth by its employer.

In sum, it is always a good idea to be aware of your company’s policies.  Even though you likely have no choice about whether or not to agree, knowing what your up against can influence how you move forward when put in a difficult situation.

Guide to Handling Workplace Discrimination

Every week, I encounter new potential clients who have fallen victim to workplace discrimination.  Among other topics, unlawful conduct includes Age Discrimination, Disability Discrimination, Injury Discrimination, National Origin Discrimination, Pregnancy Discrimination, Race Discrimination, Religious Discrimination, Retaliation, Sex Discrimination, and Sexual Harassment.  Sometimes, it is impossible for me to help.  Often, people wait too long to speak out or fail to preserve their claim.  Sitting back and letting others treat you unlawfully is not the right approach to take.  Below is my quick guide for dealing with employment discrimination in Missouri.

Step 1 – Review Company Policy

Look up your employee handbook that you probably haven’t thought about since getting hired or being handed the latest revision.  Often, these will have procedures to follow in the event of workplace misconduct.  If they do, follow them.

Step 2 – Report to your Employer

Let your direct supervisor and/or manager know what happened, and do so in writing if possible.  Give him/her the important facts.  Once you have put management on notice, they should investigate your claim.

Step 3 – Follow-up with HR

See if they investigated your complaint, and find out what they determined and what remedial measures are being taken.

Step 4 – Seek Legal Representation

If you have experienced the treatment, reported it pursuant to company policy, and nothing has been done to remedy the situation, you need to contact an employment law attorney.  You should also contact counsel if your employer has retaliated against you for making a claim.  Your lawyer will work with you to properly file your charge of discrimination with state and federal agencies.

TIP:  Please document your experience as well as possible.  This can make your case down the road.

DO NOT File Your Own Charge of Discrimination

Lately, I have been meeting with many individuals regarding pending charges with the EEOC and MCHR.  I commend these individuals for taking the initiative to do good research and take the first important step to having their employment issues heard.  Filing a charge is always stressful and time consuming.

That being said, these pro se filed charges are always too short, lacking in detail, and overall ineffective at mounting a proper case.  It is imperative that your charge tell a detailed story that compels the investigator to delve into the relevant nooks and crannies that house the important facts surrounding the treatment that motivated the unlawful conduct, which led to the filing of charges.  You must provide specific facts and allegations that guide the investigator to the proper destination.  Irrelevant or superfluous information should never be given.

In fact, I almost never see positive results from charges that originated pro se.  Involving legal counsel from the outset increases your chances of a favorable outcome exponentially.  We offer free consultations to discuss any employment issue, so there is absolutely no risk to getting my opinion.  If you think you may be the subject of unlawful workplace treatment, let’s talk about it.  Obtaining counsel will significantly increase your chance of prevailing.

Contact a St. Louis Wrongful Termination Attorney.

OSHA – The Invisible Elephant in the Room

On Monday, April 3, 2017, a tragedy occurred just south of downtown St. Louis.  A boiler-related explosion occurred at Loy-Lange Box Co., leaving casualties at their facility and another nearby business.

Accidents like this are unfortunate for all parties involved.  Loy-Lange will surely be facing some difficulties.  In addition to possible litigation from injured parties and their families, representatives of Loy-Lange will be spending a lot of time with personnel from the Occupational Safety and Health Administration (OSHA) in the upcoming years.

Most companies will never have to worry about an OSHA inspection.  Multiple investigators from both the St. Louis office and the Kansas City office have told me that the agency is simply overworked and understaffed.  That being said, if your company is selected for an inspection, it will certainly cause an inconvenience, if not outright panic.  In general, there are three reasons why an inspector will knock on the door.

  1. Complaint – Employees often file complaints with OSHA.  The motivation behind a complaint can range from anger to general fear for his safety and the safety of others.  Complaints may be filed in a variety of ways.  The bottom line is that OSHA makes it quite simple for someone to file a complaint.
  2. Accident – If OSHA finds out about a major accident, you can bet that they will be on scene soon thereafter.  In fact, there are some types of accidents that require employers to notify OSHA within 8 hours of their occurrence.
  3. Random/Follow-up/Target Program – These all fall into the same category because they do not occur directly from a specific accident or complaint.  OSHA has the right to conduct random inspections, so to some extent, you should always be prepared.  Additionally, they make conduct an inspection to follow up on previous complaints or citations, especially if the company has made abatements.  Last, there are target programs.  Regularly, OSHA will create an agenda whereby they intend to crack down on certain types of hazards.

This is an extensive topic, but here are a few things that an employer needs to know before OSHA begins walking around the campus.

  1. Does OSHA have the right to be there? Yes, OSHA may show up unannounced.  However, they do not have the right to be on the premises without a valid warrant.  And, usually, they will not obtain a warrant unless it is absolutely necessary.  An employer does have the right to eject OSHA personnel from the premises unless a valid warrant has been provided.
  2. What is the scope of the inspection? OSHA must limit its inspection to the scope of the why they are there.  For example, if an inspector visits pursuant to an accident, his inspection should be limited to the site area where the accident occurred.  The last thing you want is for an inspector to walk around freely.  He will always find other issues.
  3. What are an employer’s rights? An inspector will not inform an employer of its rights.  Frankly, he is unlikely to be familiar with all of an employer’s rights.  You have the right to have counsel present.  You also have the right to have a representative or employee be present during the inspection.  I would suggest walking alongside the investigator with a camera or video-recording device.  Apart from the items above, the most important right is that employer has the right to advise its employees of their rights.  In my experience, an inspector will always tell an employee that his statements are protected.  They are protected by whistleblower laws.  However, an employee’s rights range much further than that.  Without a subpoena, which will never be produced during an inspection, the employee has an absolute right to not cooperate with OSHA officials.  His rights to not speak or cooperate with an inspector are absolute.  The choice is his alone.  That being said, an employer cannot retaliate against an employee or discourage him from cooperating.

The bottom line is that companies, particularly those in manufacturing, construction, or otherwise labor-intensive industries, need to be prepared.  A poor showing at an OSHA inspection will create a negative public record and may be very expensive with citations, fines, abatement, and litigation.  At Schaeffer Law, we have the experience to deal with OSHA matters by providing counsel and representation specific to our clients’ requirements.