A regular round up of news, legal trends and workplace developments to help keep HR ahead of the curve
Summer is a great time to be outside, but that also means there’s more outdoor work going on, more construction and ultimately, more safety incidents.
A very interesting study in workers’ compensation claims and seasonal occupational risk confirms the conventional wisdom that summer is the most dangerous season for workers. That is despite reporting deficiencies that lead to clusters of reports issued at the end of the year when claimants or administrators are trying to catch up or clean up the mess.
In a strange turn of events, this particular summer also happens to be the moment when the entire world has been taken over by an app – Pokemon Go – which requires people to walk around in the real world while staring at their phones. It’s like the driving-while-texting conundrum has invaded our personal spaces. Our office spaces.
Employers are not happy about this due to the distraction from work factor (more on this later), but the app also portends an epidemic of workplace injuries. But here’s the rub - almost none of these injuries will be compensable if employers can prove that employees were playing Pokemon Go instead of working when they walked off the side of a building or stepped into a ditch while chasing a Caterpie.
Perhaps that’s why it’s a great time for the OSHA reporting and penalty structure to undergo an overhaul. Not only are the reporting rules changing as of August 16, but OSHA penalties are set to skyrocket at the beginning of August, when they will rise by 78%. The rise in penalties is due to the bipartisan budget signed into law by President Obama back in November 2015 and is tied to the difference between the Consumer Price Index in 1990 versus 2015.
As of August 1, 2016, OSHA penalties will be as follows:
- Serious violations - $12,471
- Other violations - $12,471
- Repeat violations - $124,709
- Willful violations - $124,709
- Failure to abate (correct) - $12,471 per day
The rule becomes effective as of August 1, 2016, with a 45-day comment period spanning July 1, 2016 through August 15, 2016. For OSHA inspections starting prior to August 1st, the current penalties are likely to remain in tact. Any new investigations that commence on or after August 1st, however, are subject to the new penalty structure.
As an example of how OSHA penalties can get out of hand for repeat offenders, the agency has fined Sunfield Inc. $3.4 million, one of the largest penalties ever levied against an automotive company. Sunfield allegedly exposed temporary workers to hazards and boasts a track record of about 20 years of OSHA violations.
And all of that was before Pokemon Go.
Culture Club
You probably heard about HR startup Zenefits and the scandal that befell the company after it was found to have cheated on the California and Washington state insurance broker licensing courses. A closer look at the company, however, attributes a lot of that to cultural deficiencies that rendered it incapable of policing itself. Among the highlights of Zenefits’ debauchery were team-wide whiskey shots to celebrate big deals and rewarding top performers with champagne bottles at gentlemen’s clubs. As with most cultural shortcomings, they start at the top and trickle down. Successful companies employ leaders who lead by example.
And what better way to imbue your preferred culture to employees than by training your managers to ensure they can properly communicate and enforce your message and standards? According to the Harvard Business Review, the natural progression of shrinking HR and training budgets is, ironically, a “tilt toward leadership development” as a way for companies to get more bang for their employee buck.
It wouldn’t be an HR Intel column without a mention of the HR laboratory otherwise known as Silicon Valley. Amidst the violence and the Black Lives Matter movement is an honest question put to the tech hotbed by authors of an extremely popular tech blog called Recode. Does Silicon Valley really care about diversity? Progress has been made in diversifying work forces to include more women but only 1% of employees at venture-funded startups are African American. Given the discrepancy between employee demographics and national demographics, it’s a fair question.
The Bare Minimum
The flip side of the push to raise the minimum wage is how companies react to it in order to maintain profitability. Starbucks is accused of slashing work hours to account for its very public decision to elevate wages above minimum thresholds across the country. Over 9,000 baristas signed an online petition admonishing Starbucks for what is essentially a bait and switch corporate promise.
After the protest against cuts in hours worked went public, Starbucks decided to raise prices on coffee. Call me a cynic, but it's not a stretch to think that these things are related. In fairness, Starbucks also agreed to raise wages (again) for thousands of baristas, but that extra money has to come from somewhere. Ahem like your pocket.
Those LGBT bathroom bills are not going away quietly, but neither are the people and the companies that oppose them. Recently, 68 companies banded together in a mega-lawsuit to challenge North Carolina's anti LGBT bill in federal court, claiming the bill condones “invidious discrimination,” which prevents companies from recruiting and retaining a diverse workforce.
At-Will At Large
It’s never a bad time for a reminder that most of us are at-will employees in an at-will world. A hedge fund manager didn’t get the memo, apparently, and was fired after trashing a Hamptons mansion in an Airbnb scheme which his former employer said was “inconsistent” with its values. Perhaps the newly unemployed Wall Street “bro” will claim an enhanced version of “affluenza” in the wrongful termination suit, inspired by the movie (The Wolf of Wall Street) which also directly inspired the party at the aforementioned mansion? Stranger legal arguments have been made.
Did you hear a rumor that it is now a federal crime to share your Netflix password with people? LOL, I did too! Guess what? It’s totally bogus and it has an HR spin to it. What could be better?
The rumor originated from a Ninth Circuit Court of Appeals case concerning the legality of “hacking” into your former employer’s database after being fired and having your credentials revoked, a practice which is illegal under the federal Computer Fraud and Abuse Act (CFAA). The case had nothing whatsoever to do with Netflix, but a mere mention of Netflix in a dissenting opinion dominated all news coverage of the case, producing the aforementioned rumor. To paraphrase Ferris Bueller, the Internet moves pretty fast sometimes. If you don’t stop and look around once in a while, you could miss it.
Here's more on that fledgling app we discussed earlier, Pokemon Go. You can imagine that business owners are not really happy about it. Not only is it a productivity sap, but people can get downright crazy about it. One guy even got fired for a profanity-laced tirade about the game not being available while on assignment in Singapore. I’m sure he won’t be the last.
How is this song related to HR?
In the last edition of HR Intel we asked you how “Touch of Grey” by the Grateful Dead is related to HR. I actually circulated this one to some “Deadheads” that I work with and I got all sorts of colorful, thoughtful answers. Personally, I think this song is about overcoming pessimism in favor of teamwork and togetherness. That the chorus shifts from “I will get by” to “we will get by” at the very end, signals a growth that can only be realized through years of individual adversity.
We leave you with “The Boys of Summer” by Don Henley.
Tell us how you think this song is related to HR in the comments section below.
Originally posted on the XpertHR blog.
Michael C. Jacobson is the legal editor for the organizational exit and investigations and litigation sections of XpertHR.
Prior to joining XpertHR, Michael worked as an attorney in Manhattan for six years where he defended employers and healthcare providers against wrongful termination, discrimination, medical malpractice and general liability claims.
Michael obtained his JD from the Benjamin N. Cardozo School of Law, where he was the notes and comments editor for the Cardozo Public Law, Policy and Ethics Journal.
Michael is on Twitter @HRTerminator and LinkedIn: http://tinyurl.com/lf2hrnr
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