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 discrimination charges with the EEOC and MCHR.  I commend these individuals for taking the initiative to do good research about discrimination procedure and take the first important step to having their employment issues heard.  Filing a discrimination 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 discrimination 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 discrimination charges that originated pro se.  Involving legal counsel from the outset increases your chances of a favorable outcome exponentially.  We offer affordable consultations for discrimination cases, so there is very little risk in getting our opinion.  If you think you may be the subject of unlawful workplace treatment or harassment, let’s talk about it.  Retaining an employment lawyer will likely 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.

 

Wadler v. Bio-Rad: In-House Counsel as Whistleblower

Last month, a jury in the U.S. District Court for the Northern District of California entered a verdict awarding $8 million in damages to the former general counsel (Sanford Wadler) of Bio-Rad Laboratories, a life-sciences company headquartered in the San Francisco area.  Wadler claimed that he was wrongfully terminated and retaliated against for reporting his suspicion to an audit committee that Bio-Rad had violated the Foreign Corrupt Practices Act (FCPA).  One topic at issue was whether Wadler could use documents and information protected by attorney-client privilege to put on his case against his former employer.

The Court found that Bio-Rad waived its claim to attorney-client privilege, and therefore, the Court admitted the evidence, overruling Bio-Rad’s objection.  In its ruling, the Court noted that other items provided by Bio-Rad during the case’s discovery phase contained a presentation, a complaint, and other communications that should have been protected by the attorney-client privilege.  And, in providing these during discovery, Bio-Rad expressly waived its claim to privilege.  By doing so, this opened the door for Wadler to use otherwise privileged information that bolstered his claim at trial.

Additionally, the court noted another important takeaway.  One of the reasons Bio-Rad gave for Wadler’s employment termination was that he failed to perform his job adequately.  The Court stated that this reason created an implied waiver to the privilege.  So, even if the Court had ruled that Bio-Rad had not expressly waived privilege by offering the above discovery, the fact that Wadler was fired for failing to perform his job adequately would have been enough to overrule the objection.

If you are company management, this case should serve as a warning that in-house company counsel shouldn’t be treated differently from other potential whistleblowers.  This creates yet another reason for companies to rely more heavily on outside counsel, as their rights and position as non-employees of the company are much different.