Safety Basics VIII: The Intersection of Employment and Workplace Safety Law

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John Surma: Welcome back, everybody. This is the eighth in our Safety Basics Series. It’s a 17-part series. Today, I’ve got my Austin partner and employment litigator extraordinaire, Erika Leonard, here to discuss the issue of the intersection of employment law and workplace health and safety law. Erika, we’re so happy to have you join us in this series. We’re so happy that you contributed a blog post on this issue, and I’m really looking forward today to recording this podcast with you and hearing what you have to say about the intersection of those two practice areas.

Erika Leonard: Thanks. Happy to be here and appreciate the invitation to crash the workplace safety party here.

John Surma: Well, we always enjoy a good party crasher, and you’re among our favorite party crashers, so come along and join us once again. Hopefully, we’ll see you in December at our Workplace Safety Symposium.

Getting right into this, one of the things that both practice groups do a lot of is investigations relating to workplace safety and health incidents. Some of us, myself being one of them, are strictly workplace health and safety lawyers, and we don’t really deal with the employment aspects of the relationship; although when those issues arise, we tend to recruit folks like yourself to help us with them. But can you talk to us about that intersection between employment-related internal investigations and the workplace health and safety investigations of those incidents?

Erika Leonard: Absolutely. So, we often see overlap where a safety incident has occurred. There may be an injury, there may be involvement by OSHA and an investigation that’s happening on that track. But we have a parallel track, which is that the employer needs to look at whether one or more employees potentially have violated workplace policies or SOPs and other procedures regarding safety and then make a determination of how they’re going to address that in terms of the policy or practice violation internally.

So, one of the first questions that an employer has to answer is, who’s going to do an investigation like this when there needs to be this parallel track in looking specifically at a safety incident? And I’ve seen this handled a few different ways by employers, and I don’t think there’s a right or wrong answer here, but employers should consider what this would be best to look like in their workplace.

One option of course is to use your human resources professionals that you already have on board. One benefit is those folks are already trained in doing investigations. They generally know what they’re looking for, how to do good documentation. So, it might be a good option for some employers.

For other employers, they end up using their management team. One advantage to that is that the management team might be more familiar with the particular job involved in the safety issue, so they might have more familiarity with the safety protocols, the SOP that is at issue, and so it might make sense to have a member or multiple members of management be involved in the investigation.

And a third creative option that I’ve seen some employers take is having an actual dedicated safety committee and one of their responsibilities as the safety committee would to conduct investigations into workplace safety issues.

One thing you want to keep in mind if you’re going to use one of those two later options, either your management team or a dedicated safety committee, is that those folks don’t necessarily have the background in conducting investigations that your HR team would have. So, you might want to consider providing some additional training on good documentation practices and what to look for in conducting an investigation. And as we will, I’m sure, talk about throughout this podcast, the documentation is crucially important because if these issues result in litigation, it’s usually years down the road before that person who conducted the investigation ends up sitting in a room having their deposition taken under oath, and at that point, it’s not going to be fresh in their mind what all of the details were. So, we want to make sure we have that excellent contemporaneous documentation of the good investigation that we performed.

John Surma: Erika, a couple of thoughts came to mind as you were explaining what you’ve seen in terms of trends relative to the investigation. I’m assuming in a number of these cases, we have underlying employment issues that are kind of separate and distinct from what I’ll characterize as the safety issue. So, the forklift operator who spills a load of product that they’re carrying also has a history of discipline issues or attendance issues or what have you. And I assume there’s some intersection, at least I’ve seen a fair number of instances where there’s a fair number of intersections, between safety issues as well as employment issues. When that comes to pass, does it sometimes make sense to collaborate different groups, so like, HR working one aspect of the investigation, the safety committee working another aspect of the investigation? Or do you think it’s better that employers combine those functions into one group and maybe you have HR representatives and safety committee members working collaboratively to do the investigation of all of the issues related to that incident and that employee?

Erika Leonard: Yeah, that’s a great question, John. So I think it depends on exactly the nature of the two issues that are being investigated because I certainly can anticipate a situation in which there’s significant overlap between what may be a safety issue, but could also partially be a conduct issue, and perhaps it would make sense to have one investigation into that. But there are also may be things that are completely distinct. For instance, if you have a safety incident and then it’s followed by some sort of verbal altercation that occurs regarding the safety incident, it might make sense to allow the HR professionals to be the ones to investigate the really more pure conduct issue, the type of thing an HR professional would typically be investigating, while keeping the safety aspect of it separate with a different investigator.

John Surma: That makes a lot of sense. I mean, and certainly, we’re not here to give employers legal advice, and so it’s very fact-specific, and it is going to vary circumstance to circumstance, but overall, I could see how the relatedness of the incidents to, for lack of a better term, the behavior, discipline problem would be a significant factor in that determination.

One other quick question for you, before we move on to the next topic area is, from the standpoint of the investigation process, in your experience, do the investigation processes more or less track the same path, whether they’re workplace safety investigations or employment investigations? Or is there any significant variation between the two?

Erika Leonard: I think that they typically do track. A good investigation, the hallmarks are going to be the same regardless of what the subject matter of the investigation is. We want to make sure that we have considered what are all of the witnesses that we want to talk to that might have information. We want to make sure we’ve reviewed any documentation or any physical spaces or physical objects that may be involved. We want to make sure we’re the results. So, there’s going to be a lot of overlap there.

I do think one place that these investigations may diverge is where you are actually determining what the next steps are. Regardless of the type of investigation, we’re talking about a workplace investigation, consistency is key, which I’m sure I’ll say again in this podcast, so to employment issues in the workplace. But whereas in a traditional HR-type investigation, there may be a broader range of potential remedies for a situation or consequences that may occur. It may be more regimented for some employers with respect to their safety practices. For instance, I’ve seen employers who have utilized a safety matrix of sorts where they have thought in advance that certain types of violations fall on a spectrum of severity and that there may be some other factors to consider, for instance, the past practices of this particular employee and whether they’ve been engaged in safe safety violations in the past. And they may use a matrix that says, if this occurs under these circumstances, then the likely outcome is going to be a verbal warning or a written warning or this is a terminable offense.

I think those can be very effective in safety situations. Of course, employers typically want to reserve discretion within those frameworks because they do want to make sure that they do have flexibility to terminate for an incident. For instance, if a minor safety infraction had the unfortunate circumstance of resulting, through a series of unexpected events, resulted in an actual injury to an employee, an employer might want to reserve the right to treat that as a terminable offense even though the underlying safety violation was not in and of itself a severe incident.

John Surma: That makes a lot of sense and I appreciate that.

Given we’ve probably run a little long on this first topic, I want to move us on to our second topic within this broad category of the intersection of the two practices. And I wanted to talk to you about disciplining or discharging or taking any sort of adverse employment action against employees who are involved in workplace safety incidents or otherwise are engaged in some sort of protected activity. This is a topic that the seventh in our series of podcasts dealt with extensively, but I think that you come at this from a little different angle. I will say that this is something that every employer who I deal with who has a fatality or catastrophic incident . . . I guess maybe not a fatality so much because the victim is deceased, but in catastrophic incidents, they look at can we do something with this employee who suffered some sort of injury? And the catastrophic one’s obviously more serious than in some other cases.

But as a broad topic, if you wouldn’t mind kind of talking to our audience about the different things that they need to be looking out for from the standpoint of disciplining employees who are either involved in a workplace safety incident or are engaged in some protected activity that’s discovered as part of the investigation.

Erika Leonard: Sure. And again, consistency is key. When we’re talking about any decisions to discipline or to terminate an employee. So, we want to ensure that we’re looking at the conduct and the outcome of this particular situation, and we’re comparing it to other similar situations that we may have seen in our workplace to ensure that we’re trying to engage in consistent treatment.

And where we see employment litigation that comes out of workplace injuries or incidents typically comes in one of two flavors, right? We see a lot of discrimination cases, so that could be along the lines of, I didn’t engage in the unsafe practice, but you’ve accused me of it, and you’ve accused me of it on the basis of a protected category, for instance, my gender, my race, my age, et cetera. Or it could be discrimination of the nature of, well, I did engage in the unsafe practice, or I did have the workplace injury or accident, but in other situations you have given employees a warning, and in my case you terminated me. And I think that’s on the basis of my protected characteristic.

Of course, the other type of case that we see in relation to workplace safety incidents is a retaliation claim. And so, this can come up in a couple of different ways because almost every employment-based statute has a provision where retaliating against an employee for taking advantage of the benefits of that statute or making an internal complaint, that that is protected activity. And as employers, they can’t engage in retaliatory actions on the basis of that protected activity.

John Surma: Is it fair for me to assume, much like the term discrimination is used in the OSH Act, to describe retaliation, they don’t use the word retaliation; they use the word discrimination. Is it fair for me to assume that under the various employment laws where non-retaliation provisions are included, that those are interpreted very, very broadly to include everything from out-and-out termination to things as modest as perhaps a change in shift to one that’s less favorable from one that’s more favorable?

Erika Leonard: Absolutely. Generally, we’ll cover things that change the terms and conditions of employment, so it could be a change in pay, a change to a less favorable shift. We see oftentimes there may be a differential between day shift and night shift that employees perceive to be more favorable or less favorable. So, it certainly includes any action by the employer that might affect the terms and conditions of employment, certainly something that could be short of formal discipline or short of actual termination.

And so, we see a lot of times where there is an allegation of retaliation at the same time that there has been a workplace safety incident. And again, this may be back to a question that you asked earlier. This may be the perfect example of where you want to take a two-prong approach and have two different sets of investigators. Because anytime you get a complaint of retaliation, just as employers, when they get a complaint of discrimination, that’s typically going to trigger an internal investigation into the validity of the complaint about retaliation.

So, for instance, I saw in a prior situation with an employer where an employee wrote a lengthy complaint letter to the organization, and it was laying out a history of what this employee claimed had been sexual harassment that was ongoing at the location, but also touched on safety violations that this employee was claiming had occurred and was threatening to engage in whistleblower activities around the safety issues. So that’s a perfect example of where the employer, on the one hand, had actually an outside investigator come in to conduct the investigation with respect to any sexual harassment allegations. They also used their internal safety team to look at whether there was any validity to the complaints about workplace safety issues and to handle that aspect of it. And then when they were done with both of those parallel investigations, that’s where we come back to the retaliation piece as we want to make sure that we’re using our best practices for treating employees going forward who have made complaints like this.

Often, these complaints come from former employees or people who are on their way out the door, but if we’re talking about a current employee, that’s where it becomes very important should there be a need in the future for any kind of discipline of this employee. We want to ensure that we’re looking at that situation on its own and that the decision-makers are not taking into consideration this past protected activity. For instance, one best practice might be if you have a manager who’s involved in disciplining the same employee in the future for an unrelated event, that decision-maker might want to consult with another manager who’s not aware of the protected activity just as a check to make sure that that is not something that is inadvertently affecting their decision-making and that another unbiased observer feels that this particular discipline is what is appropriate under the circumstances.

John Surma: I think it’s interesting that, at least in my experience, when it comes to the claims relative to discrimination from the 11(c), the OSHA perspective, you used the expression the employee who’s on their way out the door, and how frequently those employees who are on the way out the door do something from a safety perspective, or not even necessarily from a true safety perspective. We recently handled one for a client where this employee was getting more and more violent and acting out and behaving very strangely. And, ultimately, the decision was made, we had to terminate him. And the employee filed an 11(c) complaint because he had raised, sometime before his termination, some concerns about safety issues, albeit in that case, the issue that he raised related to safety concerns about fire because he had a history of arson convictions and didn’t want to get accused of starting another fire.

So, is that really safety, or is that something else? And it just seems, and we talk about it in the practice groups all the time, on the 11(c) cases, 75% or more are folks that are on their way out the door. And a way to try to stop it or at least way to get reimbursed for their time off of work is to file the 11(c) complaint, which ultimately goes to what we recommend, which is document the issues you’re having, document the discipline you’re having. And I assume in the employment law sphere, it’s the same thing, that you want to document the issues that you’re having with that employee all along so that when it comes to that moment where your investigation leads you to the conclusion that we need to take action, you’ve got some paper trail to support you in whatever action you take.

Erika Leonard: That’s exactly right. And it’s the same thing from the employment side, that, exactly as you described, we often see that employees who already are being investigated for some conduct, that that will be the point at which they raise, for the first time, some issue that may be protected activity. So it is very important for employers to make sure that they understand those are two separate things, as you’ve described. On the one hand, we’re going to deal with the conduct that led us to point that we’re having this discussion with the employee, but at the same time, we need to press pause and do an investigation on the other piece of the complaint that they’re raising. It doesn’t necessarily translate into that employee’s not going to get disciplined or not going to get terminated, but we do want to our diligence that we have followed up on that complaint.

And that’s true even when the complaint comes during a termination meeting, for instance. The termination decision’s already been made. We’ve already told the employee that they are being terminated. But if something comes up during that discussion that is raising a safety issue, it’s claiming that they were retaliated against in the course of their employment, then the best practice would be to still do that internal investigation, even though it’s not going to change the outcome for this particular employee. Best practice would be to do that investigation so that we have that documentation that we took that complaint seriously, and that may become useful in the future if we do get a legal claim from this employee that we can show that, notwithstanding the fact that they were no longer employed, we still took the complaint seriously and we did our investigation.

John Surma: Shifting gears just a little bit, one of the things that frequently comes up in the context of workplace safety incidents, particularly those that relate to or cause some sort of injury or illness, are leave and accommodation issues. Could you talk to our audience a little bit about the leave and accommodation issues that you see and deal with?

Erika Leonard: Absolutely. I think it’s important to remember that there are so many different statutes and internal benefits that may come into play with these and that there’s a lot of overlap between them, but there are also important distinctions in what the employee rights are under these programs or these laws and what the employer responsibilities are.

So, we see oftentimes a workplace safety incident is going to implicate the FMLA and potential entitlement to leave under that statute. The Americans with Disabilities Act may result in a disability that requires accommodation. There’s also the overlap potentially of workers’ compensation laws as well as other federal and state laws such as local or state sick leave laws. And don’t forget the benefits piece, right? Employers often have short-term or long-term disability plans. Under each of these programs or laws, there’s going to be a different set of standards for evaluating an employee’s entitlement potentially to benefits or to leave and different responsibilities of the employer. For instance, under the FMLA, an employer may have an affirmative duty to alert the employee to an entitlement to FMLA, whereas that might not be the case under the ADA or under our benefit plans.

So, I think the biggest takeaway there is just to make sure that business professionals are aware of the types of laws or benefit plans that may come into play and that they really partner with HR on that because your HR professionals are going to be the experts and what the employer’s responsibility is there. So, certainly, you would want to make sure that HR is aware if there is an employee injury or illness that might implicate one of these laws.

John Surma: And there’s also, against all that background, the whole issue of the exposure for a worker’s compensation retaliation claim, which a lot of folks tacitly acknowledge exists, but it’s a real thing, and it could be a real problem for an employer.

Shifting gears just one more time before we wind this up: Compensation is a big issue with our employment law colleagues, and I know that there are some issues that intersection of safety and employment law relative to compensation issues. Could you give us a little bit of an oversight in terms of what your experience has been in this arena? Most of my experience, I’ll be honest with you, is pretty much limited to folks asking questions about, “We have some sort of incentive program. Can we use that? Or is this going to create a problem from OSHA’s perspective and them calling us engaging in some sort of retaliation?” But I’m sure from the employment context, there’s some other considerations, and I’d be interested to hear what those considerations are.

Erika Leonard: When you think about wage and hour issues in the workplace, you might typically think about things like unpaid overtime or the way we classify employees as being exempt or non-exempt, but some of the safety activities that occur in the workplace occur before or after a shift. And so, that requires you to look at whether those are compensable activities under the Fair Labor Standards Act or your state corollary law.

And, as a general rule, we consider activities that are integral and indispensable to the principal activities of the job as being compensable. So this means employers need to look carefully at things like they have requirements that employees don and doff PPE. If they are in an environment where the employee needs to potentially take a shower before or after a shift, if there’s safety setup that needs to be done with equipment or safety checks that have to be done before work can commence. If we’re having pre-shift safety meetings. These are things we want to make sure that we have looked at to see whether these are compensable time under the Fair Labor Standards Act or are state laws, and that we’re making sure that employees are properly recording the time that they spend in these activities if we determine that they are compensable.

John Surma: And, certainly, there’s a considerable variation state to state in that regard. And it’s crucially important that the employer looks at their state laws and not just the FLSA as general, as you indicated. Erika, it’s been wonderful having you here. I appreciate your involvement in this project. I look forward to our continued work together, and I’m sure our audience appreciates your thoughts and opinions during this podcast. Thank you so much.

Erika Leonard: Thanks, John. Happy to do it.

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