Posts belonging to Category safety

How far can a company go in an attempt to curtail unsafe or unsavory conduct among its employees? The NFL’s Dallas Cowboys are contemplating a move that may test the limits.

In the early morning hours of Dec. 8, Cowboys defensive tackle Josh Brent and Jerry Brown, a Cowboys practice squad linebacker and passenger in Brent’s Mercedes-Benz at the time, were involved in a one-car accident. Brown was killed in the crash, and Brent—who has reportedly admitted to drinking in the hours before his car hit a curb and caught fire—now faces intoxication manslaughter charges.

Less than 48 hours later, former Dallas running back and current Cowboys consultant Calvin Hill told USA Today the Cowboys organization is “considering” a mandate obliging Cowboys players to have electronic devices installed in their cars that would prevent the vehicle from starting if the driver is impaired.

The device, called SafeKey, “includes a small fob that is attached to the key ring, which sends electronic signals to a complementary device that can prevent a vehicle from starting if a driver doesn’t pass a test based on color-coded light emissions.”

When I first saw the USA Today piece, I thought, there’s no way this concept could come to fruition. For starters, it’s tough to imagine the NFL Players Association allowing the Cowboys or any other franchise to impose this type of mandate on its players, and my guess is the NFLPA would do its level best to stop this idea in its tracks.

From a legal standpoint, I also wondered if an organization—be it “America’s Team” or XYZ Corp.—could really go through with this if so inclined.

So, I asked Mark Askanas, an employment law litigator, partner and litigation manager in the San Francisco office of Jackson Lewis.

“It’s an interesting issue” with many questions that employers interested in implementing such a measure must first answer, he says. For instance:

Does the company provide the cars to employees, or does it provide a car allowance such that the car is company property, and the employee should have no expectation of privacy?

“This is easy,” says Askanas, “if it’s a company-provided car versus a car the employee owns but receives an allowance for.”

Would there be a way to turn the device off and on such that the employer could activate it when the employee is driving the car for company business, and then deactivate it when the employee is off from work?

“An accident coming to or from work may still create liability for the employer,” he notes.

Is the person on the company’s vehicular insurance policy, such that the company has an interest in ensuring the employee never drives while intoxicated?

Is this something organizations can offer to employees that they could accept on a voluntary basis?

So, it seems employers may have some legal ground to stand on here, depending on the circumstances and rationale for mandating the installation of such devices. While it remains to be seen if the Cowboys’ idea will ever get past the talking stage, or if other, more everyday organizations will have similar notions, the concept raises some interesting questions about employers’ place in influencing employees’ behavior away from the workplace.

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The U.S. Commission on Civil Rights is still wading through testimony gathered Friday during its briefing to determine what impact the U.S. Equal Employment Opportunity Commission’s guidance on criminal-background checks is having or may have on the employment of black and Hispanic workers.

At this point, there doesn’t seem to be a precise timetable for an ensuing report and/or recommendation from the civil rights commission, or specific plan for the guidance, which the EEOC issued on April 25. But safe to say, one overriding theme of the Dec. 7 testimony – taken from 17 different individuals, representing employer groups, advocacy organizations, screening groups and providers, and employment sectors across the country – came in loud and clear: Businesses need to continue screening for criminal histories and they need some clarifications on portions of the guidance or they will remain, as one testified, “between a rock and a hard place.”

In the words of the USCCR, in its announcement about the Friday briefing, “the commission has initiated this investigation to determine whether the new EEOC guidance policy or other prohibitions or limitations on the use of criminal background checks results in lower job opportunities and reduced employment overall among minorities, including non-offenders.”

In other words, the commision’s concern – as raised over the past year by one of its commissioners, Peter Kirsanow – is that, for employers to either remove or not rely so heavily on the criminal-conviction question in a job application, as the EEOC has recommended, they might be creating a hiring system that, in turn, encourages discrimination of black and Hispanic males due to the sheer larger incarcertaion rates for these minorities.

As Rich Mellor – vice president of loss prevention for the Washington-based National Retail Federation and one of those testifying – told me in a follow-up phone call, “without that confirmation that an applicant does not have a criminal background,” an employer might be prone to try that much harder to hire a non-minority.

Even with such a confirmation, or disclosure of a criminal record and the chance to explain, minority job applicants are often hobbled by still-pervasive racial bias in hiring, according to testimony from Glenn E. Martin, vice president of development and public affairs for The Fortune Society, based in New York. He cited a Princeton University study of the low-wage labor market in New York that showed black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

“Moreover,” Martin testified, “the positive outcomes for black applicants, when presenting evidence of a criminal record, were reduced by 57 percent.”

Mellor, in his testimony, raised an additional red flag about the transparency of this crucial criminal-background conversation. The EEOC guidelines, he said, ”were enacted without giving retailers or other employers a chance for input,” according to an NRF release issued just after the briefing. “Hearings,” it says, quoting Mellor, “were held only with a ‘select group of predetermined stakeholders’ and actual text of the guidelines was released only the same morning that they were approved and implemented by the EEOC.”

The EEOC gave me this response today to the NRF’s release:

The NRF and other business groups communicated their views to the EEOC, and we considered them during the development of the guidance. Representatives of employers, individuals with criminal records, and other federal agencies testified at public EEOC meetings in November 2008 and July 2011.  The [EEOC] also received and reviewed approximately 300 written comments from members of the general public and stakeholder groups that responded to topics discussed during the July 2011 meeting.

The stakeholders that provided statements to express their interests and concerns include prominent organizations such as the Retail Industry Leaders Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Insurance Association, the National Association of Professional Background Screeners, the NAACP, Leadership Conference on Civil and Human Rights, the Public Defender Service for the District of Columbia, and the D.C. Prisoners’ Project, among others. Additionally, throughout the process of drafting the guidance, individual commissioners and staff met with representatives from various stakeholder groups such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project and the Equal Employment Advisory Council to obtain more focused feedback on discrete and complex issues.

Many of those organizations listed above had people testifying Friday before the USCCR as well, in addition to employment lawyers Jackson Lewis and Duane Morris, screening provider EmployeeScreenIQ, the U.S. Bureau of Justice Statistics and many more.

Duane Morris’ Jonathan Segal, who testified Friday on behalf of SHRM, told the commissioners that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he said, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring on the results.”

In addition, he said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment — seemingly making criminal convictions a new protected status.”

Rest assured I will be following this and will report developments as I catch wind of them. Pretty packed with pressing issues for employers, I’d say.

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In my last post, I shared a list of some of this year’s winners. Well, here’s my selections of people and organizations that didn’t fare as well in 2011. (Of course, there’s always next year.)

Unemployed workers, who were in some cases being denied work because they were unemployed.

Zynga—Before going public, the social game maker came under fire for demanding that certain employees who were given stock rights in the early days of the company surrender a portion of those shares or be fired. (Certainly, we could cite those “certain employees” as losers too.)

Public-sector unions, which continued to loose clout in states like Ohio, Georgia, South Carolina, North Carolina and Virginia.

Renault, which wrongly accused three executives of selling company secrets—and then terminated them. (Apologies and settlements promptly followed.)

Amazon, which became the subject of an Allentown Morning Call story about horrendous 110-degree working conditions at one of its Pennsylvania warehouse facilities. (Likely the same facility that ships many of the goods that show up on my porch.)

SHRM, which took a lot of heat in 2011 over allegations of a lack of transparency (primarily from a recently formed group named SHRM Members for Trasnparency). Granted, while political squabbling between these two groups contributed to the allegations,  the attention they got did undermine the credibility of SHRM’s leadership.

Herman Cain, whose run for the nation’s highest office swiftly came to an end following allegations of sexual harassment during his tenure as CEO of the National Restaurant Association (and allegations that we was having an affair).

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Over the years, I’ve regularly reached out to Merrie Spaeth, president of Spaeth Communications, for her perspective, particularly on topics related to executive communication during crisis situations. To be sure, there’s no shortage of communication experts out there; but Spaeth (who I first met many years ago when she conducted a workshop at one of our HR conferences) can always be counted on to get to the heart of the matter.

For years, Spaeth has been producing her BIMBO awards, through which she recognizes executives, celebrities and others who make the common mistake of repeating a negative assertion in their response. There’s almost always at least one “I can’t believe they said that” in her selections.

On Friday, with 2011 winding down, Spaeth came out with her “BIMBO of the Year” awards. In particular, I shook my head when I read (or should I say re-read)  her choice for runner-up: Transocean (of Deepwater Horizon fame). Perhaps you’ll remember when the firm made the following statement in its securities filings as it attempted to justify awarding multimillion dollar bonuses for its executives:

“Not withstanding the tragic loss of life in the Gulf of Mexico, we achieved an exemplary statistical safety record.”

Ugh!

Spaeth’s take on this:

This staggeringly inappropriate and insulting comment makes the list for many reasons. First, they dismiss the “tragic loss of life” as if it’s a blip on the screen. Second, they claim an exemplary “statistical safety record.” That’s like saying there were only 50 children abused in thePennState scandal. Transocean doesn’t understand the deaths call into question the entire safety culture of the operation.

Enough said. Let’s just hope Transocean chooses its words a bit more carefully as it prepares next year’s filings.

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Funny, in the past two days, I’ve come across two new tools in the “HR space marketplace” designed to help employers comply with ever-changing legislation and regulations where the government seems to be leaving an ever-widening void.

Just today, I found a Top 10 Environmental and Safety Concerns list from KPA. (This link will take you to several other links about it, including a webinar you might want to check out.) The list helps managers in the auto industry, specifically dealerships and service centers, know what the latest hot buttons are for compliance and worker safety under the Occupational Safety and Health Administration.

“Until now,” this release states, “there was only one way for [these managers] to know what the hot buttons were … . They had to sift through OSHA’s annual publication of citations for the entire transportation industry. From that list, they could try to decipher which citations were most likely to happen at their facility.

“The problem is that the transportation industry is a general index, and there are big differences between safety concerns at a dealership and safety concerns at a shipyard, which means that OSHA’s list is too general to be helpful for most dealerships and service centers.”

Gosh, you’d think someone at OSHA would have been first with this Top 10 list, in the name of proactive governmental compliance guidance.

Then, just yesterday, in researching a piece on Equal Employment Opportunity Commission compliance help — and a perceived growing lack thereof by some employment attorneys — one of those attorneys pointed me to this tool at Biddle Consulting called the Adverse Impact Toolkit, which can audit and analyze all of a company’s practices—hiring, compensation, promotion, etc.—to determine risks that could spark or enflame an EEOC investigation.

Although all agencies do provide education and guidance, the list of regulations governing every industry is only getting more complex and hard to navigate. And, if we’re to believe a growing chorus of employment attorneys, governmental compliance help before a lawsuit or citation is filed is growing scarce.

I suspect I’ll be seeing a lot more of these kinds of tools hitting the market in the not-too-distant future.

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Yesterday, a report was released by J. Davitt McAteer, a mine regulator during the Clinton administration, on Massey Energy Co.’s Upper Big Branch mine explosion on Apr. 5, 2010. Twenty-nine miners were killed in the accident. (In January 2011, Massey announced it would be sold to coal giant Alpha Natural Resources.) 

The 120-page report concludes that “accident could have been prevented and was primarily the result of the failure of the company’s safety systems, as well as inadequate oversight by federal and state regulators,” writes Kris Maher of the Wall Street Journal.  

Among other things, it alleges that the ultimate responsibility “lies with the management of Massey Energy. The company broke faith with its workers by frequently and knowingly violating the law and blatantly disregarding known safety practices while creating a public perception that its operations exceeded industry safety standards.”

I think one of most troubling lines in the report can be found on page 109: “ … more than a year after 29 men died in the Upper Big Branch mine, there is strong evidence that Massey has not changed the manner in which it operates its mines.”  

Probably not the findings Massey’s management hoped to see. 

BTW, Jeff Gillenwater, the company’s vice president for human resources, is mentioned once in report: “At 5:14 p.m., a staff member for the Response line called Massey Energy’s office and spoke with Jeff Gillenwater, the company’s vice president for human resources. Gillenwater told the official, “I did just put out a press release [at 4:57 p.m.] saying we did have an explosion and injuries are unknown at this time. I’m trying to get that information as well right now myself, but I don’t have any numbers yet.”

Vice President of Safety Elizabeth Chamberlin, meanwhile, is mentioned about 10 times.

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Nearly a year ago we featured a post here on a New York Times report about the high rate of suicides at Foxconn, a producer of electronic components in China. It noted that the company planned to take some unusual steps to address its problems, including bringing in 2,000 singers, dancers and gym trainers to improve workplace life, and constructing fences to prevent workers from jumping to their deaths. 

So where do things stand today? Well, a report released earlier today suggests that, at least at two of the Foxconn plants, things aren’t a whole lot better (though the study does mention a couple positives).

Researchers from Students & Scholars Against Corporate Misbehaviour (SACOM) in Hong Kong visited two Foxconn production facilities in Chengdu and Chongqing in Western China, where workers manufacture the Apple iPad 2 and HP laptops, and report finding the “predicaments of workers remain.”  The report alleges “labour rights abuses such as miscalculation of wages, excessive and forced overtime, threat of occupational diseases … and use of student labour.”

Meanwhile, a recent story in the U.K’s Daily Mirror says the company requires employees to sign an “anti-suicide pledge.”  The piece reports that at least 14 workers at Foxconn factories in China have killed themselves in the last 16 months as a result of working conditions.

In February, Apple released a report on its efforts to drive the “highest standards of social responsibility throughout its supply base.” If we’re to believe the findings of the SACOM report, it would appear that a bit more work needs to be done at the two aforementioned plants.

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Amid the violent storm that ripped through the South this weekend, employees at a Lowe’s store in Sanford, N.C. said the company’s emergency-preparedness plan saved their lives.

In accordance with the plan, more than 100 employees and customers were herded into a windowless room toward the back of the store and remained safe even as a tornado ripped off the steel roof.

Instead of news reports about a deadly scene, Yahoo! news is hailing Michael Hollowell a hero, for his actions in leading the group.

“It can’t help but have saved lives,” Sanford police Capt. J.R. Weeks told the AP.

When it appeared imminent that the tornado may hit the building, Hollowell and his assistants urged everyone to cram shoulder-to-shoulder in the back room, which has joined concrete walls and no heavy inventory stacked high on shelves, according to the AP story.

“It was so tight that you couldn’t move with everybody in the hallway,” said Hollowell. “We got as close as we could.”

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On the same day President Obama began his re-election campaign, Shawn McBurney, senior vice president of govermental affairs at the American Hotel and Lodging Association, spoke of the way the hospitality industry was being targeted by his administration.

“For those of you who feel persecuted, you should,” he said, noting that the Department of Labor, Occupational Safety and Health Administration and National Labor Relations Board, to name just a few, are looking hard to find violations of workers’ rights.

The DOL, he said, believes the hospitality industry “is evil and they are targeting the industry.”

The comments were part of a session on public policy and HR strategy at the 5th Annual HR in Hospitality® Conference, which drew more than 275 attendees to the Marriott Wardman Park in Washington. The event runs April 4 to 6.

And even when there is not ill intent, off-the-cuff comments by politicians can be harmful, said Geoff Freeman, executive vice president of public affairs and strategy development at the U.S. Travel Association. He mentioned Obama’s infamous-in-the-industry remarks about discouraging travelers from going to Las Vegas, Vice President Joe Biden’s remarks about not traveling by air when fears of swine flu were rampant, and a U.S. General Services Administration notice to the effect that any trips not taken are good for the environment.

That last statement, Freeman said, was made without any study being done or being grounded in any data. In fact, he said, the truth might be just the opposite: Employees who are on business trips or at conferences may use less energy because they are grounded in one spot and are not driving to work or taking subways every day.

Regardless of whether Obama wins re-election or not, however, the deficit may drive whoever is in power to reconsider the ability of companies to write off healthcare and retirement costs, said Mike Aitken, director of governmental affairs at the Society for Human Resource Management. Those two tax write-offs offer the most potential revenue to the government, ranking even above the home-mortgage deduction.

Companies should also be wary, Aitken said, of actions emanating from the Equal Employment Opportunity Commission, which has been examining “barriers to employment,” including age, credit reports, criminal-background checks and even unemployment. Credit and criminal checks, he said, are areas the EEOC is “particularly interested in.”

Immigration is another area where the government believes ”we are the bad guys,” Aitken said. The Department of Homeland Security collected $1 million in fines in 2009 from-employer violations. In 2010, he said, the total fines collected were $7 million. And DHS is continuing to increase its enforcement efforts.

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If there weren’t enough problems for the Broadway show Spiderman: Turn Off the Dark, the production has now been slapped with OSHA fines for three workplace-safety violations, according to a Fox News blog.

It’s been widely publicized that the production (which still hasn’t opened) is extremely dangerous to cast members and has seen many of its actors injured in high-flying stunts.

Actor Christopher Tierney, for example, suffered a hairline skull fracture and a broken rib when his safety harness malfunctioned — in front of a live test audience.

According to the Fox News blog:

The Feds said that actors had been “exposed to the hazards of falls or being struck during flying routines because of improperly adjusted or unsecured safety harnesses,” among other violations.

OSHA, the government agency responsible for overseeing workplace safety, cited the production after concluding that conditions at “Spider-Man” were so bad that there was a “substantial probability that death or serious physical harm could result.”

The production is scheduled to open March 15.

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