In a decision published August 5, 2016, a U.S. District Court magistrate has recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated).  In re Establishment Inspection of Mar-Jac Poultry, Inc., N.D. Ga. No. 16-0192, report and recommendations 8/5/16.  The recommendation now goes to the District Court Judge, who will consider any objections OSHA wishes to make before deciding whether to accept or reject the recommendation.  This is a significant decision because the recommendation invalidates OSHA's Regional Emphasis Program (REP) for Poultry Processing Facilities, announced last October, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or "wall-to-wall," inspection covering the entire plant.

            An accident involving a maintenance technician working on an electrical panel occurred in February at the poultry plant:  because the injuries required hospitalization, the plant was required to (and did) report it to OSHA.  (The employee recovered, and has since returned to work.)  The REP called for all incident- or complaint-related inspections at poultry plants to be expanded to comprehensive investigations, subject only to "significant resource implications."  Accordingly, when this injury report came in, the Area Director decided to field an entire team of inspectors, equipped to examine every aspect of the plant's operations, including but not limited to ergonomics, process safety management, and even hexavalent chromium exposure, to conduct a comprehensive inspection of the plant even though the electrical arc incident concerned a relatively isolated part of the plant.  The Area Director sought, and was granted, a warrant authorizing the expanded expansion:  upon learning the warrant had been issued, Wimberly & Lawson senior principal Larry Stine, on behalf of the employer, filed an emergency motion to quash.

            The Magistrate conducted a hearing, at which the Area Director testified that it was really up to his sole discretion to select targets for comprehensive inspections.  The REP ordered Area Directors to expand all unprogrammed inspections, but the reality is that OSHA only has the resources to conduct 1 or 2 each year.  This left the Area Director with no rules or guidance about which employers to select. 

The Magistrate concluded this was precisely the sort of "unbridled discretion" that the Supreme Court, in Marshall v. Barlow's, had found to violate the prohibition against unreasonable search and seizure in the Fourth Amendment to the U.S. Constitution.  Two other court decisions figured prominently in the Magistrate's reasoning:  Sarasota Concrete, in which the Eleventh Circuit had held that an employee complaint was not a sufficient basis for OSHA to inspect every aspect of the employer's operation; and Crider Poultry, in which a District Court in Georgia had quashed an OSHA inspection warrant, finding that a local emphasis program (LEP) focused on sanitation and a national emphasis program (NEP) on amputations did not supply probable cause to support the expansion of an unprogrammed inspection.  (Larry Stine represented the employer in Crider as well.)

This recommendation is important because it reminds OSHA that it is subject to the Fourth Amendment's limits on search and seizure.  The Fourth Amendment states that no warrant shall issue except on "probable cause:" for OSHA, this means that they must have a reasonable belief not just that hazards exist in the workplace - there are hazards in all workplaces - but they have reason to believe that OSHA standards have been violated.  In this case, the Magistrate found, OSHA had probable cause to believe there might be violations of standards relating to electrical panels, based on the reported injury; and potential violations of the lock-out/tag-out (LOTO) policy, so that those might be inspected:  but the REP did not supply probable cause to expand the scope of the inspection. 

The Magistrate also found that the OSHA 300 logs, which list recordable workplace injuries, did not supply probable cause.  "Nothing in Crider Poultry supports a conclusion that the mere presence of an injury on an OSHA 300 form supports a full scale investigation of the hazard related to that injury," he wrote.

We believe this recommendation is well-reasoned, and the District Court should adopt it in full.  It will be an important protection for all employers against unreasonable, expansive (and expensive) inspections in the future.

On June 30, 2016, the Department of Labor announced that it is increasing the monetary penalties for more than 60 kinds of violations of labor and employment laws.  These changes are part of the Inflation Adjustment Act, which was part of the budget resolution that Congress passed in November 2015.  This law directs federal agencies to adjust their civil monetary penalties for inflation every year going forward.

The Occupational Safety and Health Administration, for example, will have maximum fines arising nearly 80% to $12,500 for serious violations and $124,700.00 for willful or repeated violations.  The new penalties will apply to those assessed after August 1, 2016.

In the immigration law area, the penalty for a first offense of employing unauthorized workers is going from the range of $375.00 to $3,200.00 per violation to a range of $539.00 to $4,313.00 per violation.  Paperwork violations such as failure to properly complete the I-9 Form are going from a range of $110.00 to $1,100.00 per violation to a range or $216.00 to $2,156.00 per violation.  Fines for violating the anti-discrimination provisions are also increasing as document abuse goes from $110.00 to $1,100.00 per violation to a range of $178.00 to $1,782.00 per violation.  

A federal appeals court has rejected the position of the Equal Employment Opportunity Commission (EEOC) that discrimination against a worker based on sexual orientation is prohibited by federal law.  Hively v. Ivy Tech Cmty. Coll., 129 FEP Cases 657, 7th Cir. App. (July 28, 2016).  This decision is the first federal appeals court ruling to address the issue since the EEOC in July 2015 ruled that bias based on sexual orientation is sex discrimination and thus violates Title VII.  The issue is currently pending before two other federal appeals courts.  Although the issue of sexual orientation may be slightly different than transgender rights, similar issues as to the definition of "sex discrimination." 

Even the Seventh Circuit ruling stated that "perhaps the writing is on the wall" for changing federal law, but indicated that the change must come from Congress or the Supreme Court.  The court does indicate that there is a distinction between discrimination on the basis of gender nonconformity, which is currently prohibited by Title VII, and sexual orientation discrimination, which the court says isn’t prohibited by Title VII.  Meanwhile, Democratic Presidential Nominee Hillary Clinton has pledged to make enacting a bill which would expressly add sexual orientation and gender identity as protected categories is her "highest priority" if elected. 

The issue is not going away, and current federal regulations protect such categories under the government contracting rules.  The Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) issued an agency directive back in August 2014 to indicate that sex-based employment discrimination under Executive Order 11,246 includes gender identity and transgender status.  President Obama has issued EO 13,672 to expressly prohibit contractors from discriminating against applicants and employees based on sexual orientation and transgender status, and the OFCCP issued rules implementing that Order in December 2014. 

The government’s position is that the sex discrimination rules require contractors to allow workers to use restrooms, changing rooms and similar facilities that are consistent with their gender identity.  Similar issues arise concerning benefits and medical coverage issues. 

Editor’s Note - Current legal interpretations prohibit employers from discrimination on the basis of gender non-conformity, even though such laws do not expressly extend these protections to sexual orientation discrimination.  However, the EEOC takes the position that sexual orientation discrimination is also prohibited, and seems to regularly attack such types of discrimination in their current litigation approach.  Further, the OFCCP government contracting rules extend the protections of sexual orientation discrimination by contract to federal contractors.  For these reasons, most employers are adapting their company policies to recognize such rights, even though they are not yet settled law. 

Due to some highly-publicized incidents, including terrorism, the thinking on the prevention and reaction to incidences of workplace violence is undergoing a shift.  The Department of Homeland Security offers the following suggestions as the best methods to respond to an active shooter:

1.         Run - Have an escape route and plan in mind, leave your belongings behind, keep your hands visible.

2.         Hide - Hide in an area out of the active shooter's view, block entry to your hiding place and lock the doors.

3.         Fight - The last resort and only when your life is in imminent danger, attempt to incapacitate the active shooter and act with physical aggression, throw items at the active shooter.

Earlier advice on the subject from other groups emphasize simply hiding from the active shooter.  Some criticize the last option of "fighting back" because it takes skills and experience.  As an example, one active shooter in Orlando attacked some 300 persons.  They didn't know how to fight back.

Complications arise due to the many types of state laws on the subject of carrying weapons.  The laws of some states allow employees to keep a gun in a locked car in the company parking lot, for example.  Other states address such issues by requiring employers to post signage for prohibiting firearms on company property.  All states, however, seem to allow an employer to prohibit guns in the facility. 

An interesting federal court decision out of Mississippi illustrates the tension between individual rights and employer policies against guns in the workplace.  In this case, the individual rights won.  The U.S. Court of Appeals for the Fifth Circuit ruled that Mississippi’s gun law created a public policy exception to Mississippi’s employment at will statute.  As a result, an aircraft production employee fired for keeping a gun in his locked car at work may sue for wrongful discharge under Mississippi law (Swindol v. Aurora Flight Scis. Corp., 5th Circ. No. 14-60779, 8/8/16).

Aurora Flight Sciences Corp. Fired Robert Swindol in 2013 for violating a company policy prohibiting guns on its property.  Swindol argued that the termination infringed on a Mississippi statute that allows workers to store their firearms in a locked vehicle on company grounds.  Although the lower court dismissed Swindol’s case, the Fifth Circuit Court of Appeals reversed, finding that the Mississippi firearms statute created a public policy exception to employment at will.

Prior to its decision, the Fifth Circuit asked the Mississippi Supreme Court to answer a certified question about the effect of the Mississippi Code on the traditional doctrine that employees without contracts serve at will and may be fired for any reason.  The state supreme court replied that the Mississippi statute can make an employer liable for wrongful discharge if it fires an employee for having a firearm in a locked car at work.  The state court indicated that the provision in question is "express legislative action" that makes terminating an employer for having a firearm inside his locked vehicle on company property "legally impermissible." 

Could this type of decision occur in other jurisdictions?  Georgia, for example, has enacted statutes that address legal firearms possession, including the so-called "guns everywhere" law.  (For more information, see "It's Time to Prepare for 'Guns Everywhere,'" by Kathleen Jennings, Fulton Daily Report, June 26, 2014).  However, while Mississippi recognized certain public policy exceptions to at will employment back in 1993, Georgia courts have been more reluctant to recognize judicial exceptions to at-will employment.   Nevertheless, the Mississippi decision may empower a Georgia employee who is terminated for lawfully possession a firearm in violation of an employer's policy prohibiting all firearms on its property to seek a similar public policy exception to at-will employment in Georgia. 

Some employers are reacting to these issues by creating a threat response team.  The threat response team should have skills and/or experience in handling potentially dangerous situations, and have immediately available a list of emergency contact information, first-aid kits, and the like.    Some local law enforcement offices have trained special units to respond to an active shooter event.   This team would also be contacted and investigate all workplace violence complaints or concerns. 

Some companies also conduct a security assessment at each workplace location that covers whether the public has easy access to the site and whether certain physical changes or engineering and administrative controls could be implemented to reduce worker vulnerability to an active shooter or workplace violence event.

Wimberly, Lawson, Steckel, Schneider & Stine

 3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 / 404.365.0900

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