Professional Service News
California Could Expand Parental Leave
Sacramento, CA: California is looking to expand parental leave laws to require smaller businesses to provide parental leave to employees. If approved, the law would require employers with 20 to 49 employees to provide parental leave to employees. Current law only requires companies with 50 or more employees to provide parental leave.
The proposed Senate Bill—S.B. 63—was introduced to the California legislature on December 22, 2016 by Senator Hannah-Beth Jackson. It is similar to a bill that Governor Jerry Brown vetoed in September 2016, but Senator Jackson has said she will continue to push for it. When Brown vetoed Senate Bill 654, he cited concerns about the impact of the bill on small businesses.
Under S.B. 63, mothers and fathers would be given 12 weeks of unpaid job-protected leave to bond with their babies during the first year of the child's birth, adoption or foster placement. The vetoed bill had only offered six weeks of such leave. This leave would be available to employees of companies with 20 or more workers within a 75-mile radius of the worksite.
"Any new parent knows that the birth of a new baby comes with a host of changes and challenges," Jackson said. "But losing a job should never be among those challenges."
Jackson also introduced Senate Bill 62, which would expand the included family members employees could take leave to care for to include grandparents and grandchildren, siblings, parents-in-law, or adult children.
"Too many hardworking Californians cannot take time off from work in times of need—whether to care for a new child or a seriously ill family member—without risking their jobs," said Julia Parish, a sponsor of the bills. "Senator Jackson's bills ensure that California leads the way for working families so that they can keep their jobs during these critical times."
In a news release announcing the proposed bills, Senator Jackson's office noted that 37 percent of California employees who knew about California's Paid Family Leave Benefits and needed that leave did not apply because they feared they would face consequences at work for doing so.
Under the Family and Medical Leave Act, employees who are covered by the Act can take their protected leave without fear of retaliation from their employer. In cases where employers fire protected employees or give them other negative consequences for taking their leave, employees can file a lawsuit against the employer.
Oracle Hit with Federal Discrimination Lawsuit, Allegations Stem from California
Redwood City, CA: A software and tech juggernaut has come under fire from the US Department of Labor (DOL) for alleged discrimination against women and minorities. The allegation, which is backed by a lawsuit against Oracle America Inc., accuses the defendant of paying women and minorities less than their counterparts.
The discrimination lawsuit also alleges that Oracle discriminates against qualified non-Asian applicants, in favor of Asian candidates for certain roles.
Even though the discrimination lawsuit has national scope, the litigation has a founding in California, which is where the multinational tech giant maintains its headquarters. The discrimination complaint grew out of findings gleaned from a routine compliance review at Oracle’s head office in Redwood Shores conducted in 2014. Alleged discrimination may have occurred prior to that time, however the DOL is using January, 2014 as the starting point for alleged discrimination which, in the DOL’s view, has been going on at the Redwood Shores facility from at least January, 2014 to present day.
The DOL found that women who worked in the areas of information technology, product development and support services were paid less for their work than their male counterparts working in comparable roles.
Minorities also suffered from discrimination, the DOL asserts in its discrimination lawsuit. The review found that Oracle paid qualified African-American workers, and employees of Asian descent, less than their Caucasian counterparts performing similar work in similar roles.
The DOL also found California discrimination within the communities of minorities working at Oracle’s Redwood Shores headquarters. Court records suggest that Oracle snubbed qualified Caucasian, Hispanic and African-American applicants in favor of Asian candidates for jobs in the technical and product development realms.
The Department of Labor asserts that such favoritism towards Asians, and particularly South Asians, was going on since at least January of 2013.
Oracle is no slouch as an employer, with in excess of 45,000 full-time staff across the US. Of those 7,000 are employed at the Oracle headquarters in Redwood Shores. It should also be noted that Oracle has been the recipient of millions of dollars’ worth of government contracts, which is another reason why the DOL is taking such allegations of California employment discrimination – and similar discrimination across the country – very seriously.
“Federal contractors are required to comply with all applicable anti-discrimination laws,” Thomas M. Dowd, the acting director of DOL’s Office of Federal Contract Compliance Programs, said in a statement. “We filed this lawsuit to enforce those requirements.”
Oracle responded with a statement, and notes that in its view the discrimination lawsuit is without merit.
“Oracle values diversity and inclusion, and is a responsible equal opportunity and affirmative action employer,” a company spokeswoman said. “Our hiring and pay decisions are non-discriminatory and made based on legitimate business factors including experience and merit.”
The discrimination lawsuit was filed during the dying days of the Obama Administration, prior to the transition to President Donald Trump.
The case is Office of Federal Contract Compliance Programs, United States Department of Labor v. Oracle America Inc., Case No. R00192699, US Department of Labor Office of Administrative Law Judges.
Donning & Doffing Plaintiffs Allege Hours of Unpaid Work per Week
Los Angeles, CA: A class action wage and hour donning and doffing lawsuit in Arkansas is not unlike similar lawsuits which have originated in California (Silva v. See’s Candy Shops Inc., Case No. D068136 in the Fourth Appellate District, Division One, in the Court of Appeal of the State of California) alleging employees have not been paid for all time spent working, and specifically time spent climbing into, and shedding uniforms and other related safety gear at the behest of the employer.
The issue has pitted employer against employee for years. Employers are reluctant to pay their employees for donning and doffing – the act of dressing into employer-mandated uniforms, clothing, hazmat (hazardous materials) suits or other related safety gear, because the employee is not performing actual work.
The employee responds with the view that any uniform, article of clothing or safety gear mandated by the employer in order to perform the employee’s job, should be compensated by the employer. In other words, employees should be dressing, or undressing (donning and doffing) on the clock.
Donning and doffing is a term also used to represent various wage and hour claims, such as off-the-clock work whereby an employee is directed, or expected to perform tasks before punching in for the shift, and / or after clocking out for the day. This combined with missed meal and rest periods – or a requirement to either perform tasks or remain on constant standby to do so – can add several minutes to an employee’s workday for which the employee is not being paid, or so it is alleged.
In the case of the class action wage and hour lawsuit originally filed in Circuit Court of Sebastian County, Arkansas before removal to District Court (Darrell Cato, et al. v. OK Foods, Inc., Case No. 2:16-cv-02202-PKH, in the US District Court for the Western District of Arkansas – Ft. Smith), hourly production workers employed by OK Foods in Fort Smith allege they are missing out on six, to seven hours of pay per week performing tasks for which they are not paid.
Named plaintiffs include Darrell Cato, Jeffrey Biggs, Margee Williams and Mario Mallett.
The case was recently appealed by the defendant to the US Court of Appeals for the Eighth Circuit.
Meanwhile it’s a new day for a California wage and hour lawsuit, even though an appellate panel ruled mostly in favor of the defendant. Nonetheless, plaintiff Pamela Silva’s years-long dispute with her former employer, See’s Candy Stores Inc. will go forward based on grounds granted to the plaintiff by the appellate panel.
The dispute qualified as a California donning and doffing lawsuit, in that Silva alleged See’s Candy forced her to perform work during her lunch hour, when she was – or so it was alleged – clocked out.
Snapchat Faces California Wrongful Termination Claims
Los Angeles, CA: Snapchat is the latest tech company to face a lawsuit, but this time the plaintiff alleges wrongful termination, claiming he was fired for alerting superiors to potential misrepresentation on the part of the company. The California wrongful termination lawsuit was filed in January 2017, and claims the company purposely misled investors ahead of its initial public offering (IPO) to inflate Snapchat's valuation. The plaintiff, Anthony Pompliano, further alleges that Snapchat has since worked to destroy his career.
Vanity Fair (1/6/17) reports Pompliano filed his wrongful termination lawsuit against Snapchat alleging he told superiors about Snapchat's activity, including allegedly misrepresenting growth metrics. Pompliano was hired by Snapchat in August 2015. He was hired from Facebook. He alleges, however, that he was given false information by Snapchat when he was hired.
"Driven by its fierce rivalry with Facebook—a spurned suitor turned keen competitor—Snapchat fraudulently induced Mr. Pompliano away from Facebook to run Snapchat's new user growth and engagement team by falsely representing to him, among other things, the Company's growth," the lawsuit alleges. Pompliano worked only three weeks for Snapchat.
According to court documents, during his time at the company Pompliano learned that some of the metrics he had been given when the company recruited him were false. He then alerted Snapchat's Vice President of Finance about the misrepresentations and although some of the company's superiors reportedly agreed with him, Pompliano was fired. He alleges he was only hired by Snapchat from Facebook so Snapchat could obtain Facebook's proprietary information. Pompliano claims he refused to breach any agreements he had with Facebook.
"Snapchat's leadership saw Mr. Pompliano as an impediment to their planned IPO because he refused to turn a blind eye to Snapchat's misrepresentations," the lawsuit alleges. "Indeed, Snapchat accurately perceived that Mr. Pompliano would 'blow the whistle' should Snapchat continue to misrepresent its [redacted] to the public, advertisers, prospective employees, private investors, or in connection with its planned IPO."
In addition to firing him, Snapchat apparently "sought to destroy his career and reputation" by making "false representations" about the reasons why he was fired, including stating he is incompetent. Pompliano's lawsuit seeks to prevent Snap Inc, maker of the Snapchat app, from misrepresenting the reason for his firing.
Snapchat told Vanity Fair the allegations have no merit and were made up by a "disgruntled former employee."
The lawsuit is Pompliano v. Snap, Inc., et al. case number BC645641, in Superior Court of the State of California for the County of Los Angeles.
A California ERISA Potpourri to begin the New Year
Los Angeles, CA: Something old and something new to begin the year on the California ERISA file. ERISA is the Employee Retirement Income Security Act (as amended 1974), a federal statute that also reaches into individual states and is designed to protect the rights, and the future incomes of workers having already retired, or nearing retirement and already beyond their peak earning years.
To that end, there’s a new rule that comes into effect in less than a week and applies to claims for disability benefits under ERISA made on, or after the first of January of 2018. The rule, recently finalized by the Employee Benefits Security Administration – an Arm of the US Department of Labor – relates to disability claims under Section 503 of ERISA.
The final version of the rule reflects a slight departure from the proposed rule, and now includes a requirement that notices of adverse benefit determinations need to spell out any applicable time limit for filing an ERISA lawsuit.
The rule kicks in on January 18. Employers both federally, and within the state of California need to be aware of the changes and comply, in order to avoid complications stemming from potential litigation.
Legal experts remind employers that maintaining and adhering to California’s equal pay law, which is now a year old, is important in terms of ERISA and pensions, given that higher pay leads to increased contributions, which can in turn grow a pension and retirement nest egg more quickly. Potential litigants bringing an ERISA lawsuit could claim that any employer having failed to implement equal pay as mandated under California law, may have also contributed to diminished growth of pension and retirement income under ERISA.
Meanwhile, on another ERISA front Anthem, Inc., in its Form 10-Q report filed with the US Securities and Exchange Commission (SEC) in early November for the quarterly period ending September 30, 2016 updated a long-standing court case that was launched when Anthem was known as WellPoint, Inc.
The Company said, “We are currently a defendant in eleven putative class actions relating to out-of-network, or OON, reimbursement that were consolidated into a single multi-district lawsuit called In re WellPoint, Inc. (n/k/a Anthem, Inc.) Out-of-Network “UCR” Rates Litigation that is pending in the United States District Court for the Central District of California.
“The lawsuits were filed in 2009,” Anthem continued. “The plaintiffs include current and former members on behalf of a putative class of members who received OON services for which the defendants paid less than billed charges, the American Medical Association, four state medical associations, OON physicians, OON non-physician providers, the American Podiatric Medical Association, California Chiropractic Association and the California Psychological Association on behalf of putative classes of OON physicians and all OON non-physician health care providers.”
Anthem went on to say that plaintiffs filed several amended complaints alleging defendants violated the Racketeer Influenced and Corrupt Organizations Act, or RICO, the Sherman Antitrust Act, ERISA, federal regulations, and state law by using the OON reimbursement database Ingenix, and by using non-Ingenix OON reimbursement methodologies.
Anthem noted the Court had dismissed all claims related to state and federal anti-trust claims, together with claims under RICO dismissed with prejudice.
“The only claims that remain after the court’s decision are an ERISA benefits claim relating to claims priced based on Ingenix, a breach of contract claim on behalf of one subscriber plaintiff, a breach of implied covenant claim on behalf of one subscriber plaintiff and one subscriber plaintiff’s claim under the California Unfair Competition Law,” the company said.
Anthem added the Court has since granted summary judgment to the defendant on all claims, but has yet to enter a judgement in the case. Thus, the ERISA case was still somewhat fluid as of November 2.
California Harassment Lawsuit Filed Against Goodwill Industries
Oakland, CA: A California harassment lawsuit has been filed against Goodwill industries and an affiliate, alleging the two organizations allowed female janitorial staff to be sexually harassed. The lawsuit was filed by five employees and the Equal Employment Opportunity Commission (EEOC) in US District Court for the Northern District of California and claims violations of the Civil Rights Act and the Americans with Disabilities Act.
According to court documents, Goodwill Industries and Calidad Industries subjected female employees to sexual harassment, retaliated against supervisors who supported employee claims of harassment, subjected disabled employees to disparate terms and conditions of employment, and forced a supervisor to retire due to oppressive employment conditions.
The women all worked as night-shift janitors at the Oakland Federal Building. They claim their supervisor "engaged in repeated sexually offensive verbal and physical acts toward his female subordinates." Included in these alleged acts are the supervisor groping and/or adjusting his genitals while in the presence of female employees, making unwelcome and sexually charged comments to women, and engaging in inappropriate and unwelcome touching.
The women allege they repeatedly complained about their supervisor's actions but the defendants failed to take action to stop the harassment or protect the employees from a hostile work environment. The harassment reportedly began around 2009 and continued to 2012, when the supervisor's access to the Oakland Federal Building was revoked by the U.S. General Services Administration as a result of the harassment complaints.
Despite this action by the General Services Administration, the defendants reportedly transferred the supervisor to a different location and did not discipline him for his alleged treatment of the women.
The lawsuit also alleges that two supervisors opposed the sexual harassment and provided evidence or testimony in support of the employees' claims and were then retaliated against. One supervisor, Lisa Short, was allegedly reprimanded and disciplined after assisting in an investigation. Among the consequences she faced was being transferred to the night shift.
"From April 2012 through October 2012, Defendants retaliated against Short to such a degree that it created an environment so abusive and oppressive that she had no choice but to quit," the lawsuit alleges. Another supervisor, Doward Washington, was allegedly warned against participating in a harassment investigation. When he did participate in the investigation, he was subjected to unfair criticisms of his work, including being reprimanded for not carrying out duties that were not part of his job description.
The workers claiming harassment were all employed through Goodwill affiliate Calidad's work program that helps people who have severe physical, mental, or psychological impairments find work and become financially independent.
The lawsuit is EEOC v. Goodwill Industries of the Greater East Bay Area, case no. 3:16-9093.
California Undocumented Workers have an Ally in the State
Davis, CA: With the inauguration of President-elect Donald J. Trump mere weeks away, the fate of undocumented workers in California remains tenuous should Mr. Trump carry his campaign rhetoric forward to actual policy once installed in the Oval Office. Mr. Trump’s recent stance on the planned installation of a manufacturing plant in Mexico by Ford Motor Co. resulted in the cancellation of those plans when Trump hinted strongly that Ford would face massive taxation to bring Mexican-built cars across the border into the US.
Undocumented workers in the US have borne much the brunt of Trump’s pro-American position. This is especially troubling for California, given the large number of undocumented workers in the state and the importance they have to the California economy. California has already issued statements supporting its undocumented workers, and their value to the financial health of the state. However, the Trump Administration remains a looming threat if campaign promises are carried out.
That said, Kevin R. Johnson, dean of the University of California, Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, writing in The Sacramento Bee (11/27/16) muses that any attempt at a massive deportation of undocumented workers is fraught with obstacles.
With regard to President-elect Trump’s campaign promise to round up and deport two, to three million undocumented immigrants with a focus on criminals, there is some question as to whether that effort will be restricted to those guilty of major crimes, or encompass any undocumented worker arrested for even a minor infraction.
The Bee referenced research that suggests undocumented immigrants are, in fact more law-abiding in general than their US-born counterparts.
Workplace raids, akin to an effort undertaken during the George W. Bush Administration in 2008, could be tagged with claims of civil right violations against workers. That’s what happened when the Agriprocessors Inc. manufacturing facility located in Postville, Iowa was raided and nearly 400 immigrant workers were arrested.
There has also been talk, according to The Bee, of enacting legislation requiring all employers to make use of the E-Verify database, a federal effort towards employee verification that is strictly voluntary. There have been overtures from the Trump transition team that use of E-Verify could be made mandatory. The database, it has been reported, is error-prone. There have reportedly been some instances where workers have been discharged by their employer, even though they are legally entitled to work in the US.
Finally, muses Kevin R. Johnson, in comments appearing in The Bee, any end to the so-called “catch-and-release” detention process could result in California undocumented worker lawsuits. Currently, workers detained for lack of documentation are eligible for release by posting bond. Ending the practice of “bonding out” could ensnare a California undocumented worker in custody that could last for years, given the huge backlog of cases currently experienced by immigration courts.
Such a practice could increase the likelihood of undocumented worker lawsuits, the resolutions of which could take years.
In a perfect world, all workers would be documented. In reality, the state of California has thrown its support behind undocumented workers for their contributions to the state economy.
Apela a la sentencia: No más terminaciones de contrato injustas para los trabajadores de almacenes
Los Angeles, CA. Una corporación importante de medios de comunicación obtuvo un regalo temprano de Navidad el pasado 20 de diciembre cuando un panel del tres-jueces junto con el segundo Tribunal de Apelación en California revirtió la decisión de una corte inferior que afirmaba que Time Warner Cable Services LLC era culpable de terminación injusta de contrato y discriminación por discapacidad.
Un tribunal inferior había evaluado una sentencia de 3.4 millones de dólares contra Time Warner con respecto al despido de un empleado de almacén por uso de drogas correspondientes a su tratamiento médico. La demandante, Patricia Hancock, fue despedida de su cargo en el almacén debido a la supuesta violación de la política de drogas de su empleador. Hancock había alegado la terminación injustificada porque la droga que ella tomaba para el dolor, hydrocodone, le había sido prescrita previamente por el doctor. Hancock también alegó que su empleador no había logrado integrar de manera efectiva su discapacidad en el área de trabajo. Un tribunal inferior estuvo de acuerdo con la demandante, y emitió una sentencia de $3.4 millones contra Time Warner.
Sin embargo, el panel de apelación revocó la decisión del tribunal inferior porque, a su juicio, el acusado no era suficientemente consciente de que su empleado había sufrido una lesión incapacitante y, por lo tanto, no podía ser considerado responsable de una terminación ilícita de contrato basada en la discriminación por discapacidad, como afirmaba la demandante.
La corte de apelaciones determinó que Hancock no había informado adecuadamente a su empleador sobre el alcance de su lesión, tal y como la tenía mientras trabajaba en un almacén de Time Warner.
"El empleado no puede esperar que el empleador lea su mente y sepa que él secretamente quería un tratamiento en particular debido a su lesión y luego demandar al empleador por no proporcionarlo", afirmó el fallo del panel de apelación. "Cualquier inferencia extraída de la evidencia debe ser un producto de la lógica y razón, no de la especulación ni de conjeturas."
Según los documentos de la corte relacionados con el juicio por despido injustificado de California, Hancock sufrió una lesión en la espalda baja mientras movía palés pesados ??en un almacén de Time Warner. Esto fue en agosto de 2011. El tribunal inferior determinó que un supervisor de almacén que había ordenado cajas adicionales para los palets (y que, por lo tanto, aumentó el peso que invariablemente llevó a la lesión de la demandante) no aconsejó a Hancock el llenar un informe de accidente, para luego llevárselo a un médico.
Sin embargo, de acuerdo con los registros de la corte, la demandante no informó nunca al supervisor sobre su necesidad de recibir atención médica - la demandante tampoco pidió regresar a casa en ningún momento.
De acuerdo con la demanda de despido injustificado, la demandante experimentó un dolor cada vez mayor al regresar a casa más tarde ese día y tomó analgésicos que le habían sido prescritos previamente, después de un procedimiento quirúrgico no relacionado con el accidente en el almacén.
Los registros de la corte revelaron que, al día siguiente, el supervisor del almacén llevó a la demandante a ver a un médico, y a la demandante se le fue autorizado el trabajar. Sin embargo, una prueba de drogas de rutina tomada como parte de la consulta con el médico reveló la presencia de hidrocodona en el sistema de la demandante, relacionado con la medicación que había tomado para el dolor la noche anterior.
Ahí es cuando el problema comenzó, y formó la base de la demanda por despido injustificado. Se solicitó a la demandante la prescripción de la hidrocodona. Hancock indicó que se trataba de un récipe viejo, por lo que no pudo conservar la copia original y necesitaría siete días para que se le enviara el papeleo de reemplazo desde su proveedor de atención médica.
En lugar de colocar a la demandante en una licencia no remunerada hasta que esta asegurase el papeleo para la hidrocodona, un gerente de recursos humanos del acusado despidió a Hancock por violación de la política de drogas.
El tribunal de primera instancia encontró que Time Warner no había logrado integrar la discapacidad de Hancock, y el jurado accedió a una remuneración por daños y perjuicios. La corte de apelaciones revirtió esa decisión, en parte, porque en opinión del panel de apelaciones, Hancock no había informado a su supervisor en el momento que la discapacidad que le sirvió de base para su demanda de despido injustificado en California se debía a su lesión en la espalda.
El panel de apelaciones también determinó que su despido se basó en la incapacidad de la demandante para obtener inmediatamente los documentos de prescripción para la hidrocodona, y no debido a su discapacidad.
"Aunque el jurado descubrió que TWC sabía que Hancock tenía una discapacidad calificada, a la demandada no se le despidió debido a la discapacidad. Como resultado, Time Warner no estuvo involucra en discriminación por discapacidad y no terminó el contrato de Hancock injustamente", afirmó la sentencia del panel de apelaciones.
El caso de terminación de contrato injustificado es “Hancock contra Time Warner Cable Services LLC y otros”, Caso No. B266532, en el Tribunal de Apelación del Estado de California, Segundo Distrito Apelativo.
Google Faces California Employee Lawsuit
San Francisco, CA: A Google employee has filed a California labor lawsuit alleging the company violates compliance laws by requiring employees to maintain illegal standards of confidentiality. Although companies are allowed to maintain confidential trade secrets, the employee alleges Google takes the secrecy too far and violates California labor laws in the process.
According to The Wall Street Journal (12/21/16), a Google product manager filed the lawsuit, alleging Google prohibits employees from telling potential employers how much money they earn, sharing what experience they had while working for Google, or disclosing their skills obtained while at Google. Furthermore, according to the lawsuit employees are prevented from speaking with each other about potentially illegal conduct or dangerous product defects.
The plaintiff, who is listed only as John Doe in the lawsuit, alleges the California labor lawsuit was filed after an email from Google's director of global security told approximately 65,000 Google employees that the plaintiff had leaked confidential information to the press though the plaintiff maintains he did not do so. Although Doe's name was not given in Katz's email, Doe says employees had no difficulty figuring out the person mentioned in the email was him, and he argues the email damaged his reputation among his colleagues and could further damage it within the industry.
Doe alleges that as many as 65,000 current employees and thousands more former Google employees are affected by the Confidentiality Agreement and policies.
According to the lawsuit, Google's Confidentiality Agreement violates California labor law because it restricts employees' abilities to find new work. The lawsuit also alleges Google violates employees' freedom of speech and freedom to work by limiting their ability to talk freely during non-work hours. Doe further alleges that Google's Confidentiality Agreement does not advise employees that they are able to report illegal activities without fear of retaliation.
Doe says he was hired by Google in July 2014 and signed the Confidentiality Agreement. That Confidentiality Agreement reportedly defined "confidential information" as "without limitation, any information in any form that relates to Google or Google's business that is not generally known." This allegedly includes "employee data."
Failure to abide by the Confidentiality Agreement can allegedly result in disciplinary action including termination and/or legal action.
A representative for Google said the company puts a high priority on transparency and its confidentiality policies are only to protect proprietary information. But the lawsuit alleges Google defines "essentially everything" as "confidential information."
"Google's motto is 'don't be evil'," the lawsuit states. "Google's illegal confidentiality agreements, policies, and practices fail this test."
New California OSHA Workplace Violence Standard for Healthcare Workers
Sacramento, CA: There is little doubt that healthcare workers, second only perhaps to police officers, are amongst the highest groups of workers potentially exposed to workplace violence. Police have to worry about aggressiveness from criminals and suspects. For the healthcare worker, aggressiveness in the workplace can originate with patients showing aggression towards their healthcare provider. For 2017, the California Division of Occupational Safety and Health Administration (Cal/OSHA) is addressing this head-on with new guidelines which could come into effect as early as January.
What this means for the healthcare worker, is that employers will now have strict guidance with regard to minimizing, and even mitigating aggression and violence in the workplace. At the same time, however, some of the provisions are reported to be broad in nature and subject to interpretation. For the healthcare worker in the state of California, an employer’s due diligence (or lack thereof) with regard to enforcing the new rules could provide the basis for a California OSHA lawsuit amidst allegations the employer dropped the ball in enforcing the new guidelines.
Federally, OSHA has only broad guidelines with no specific standard of guidance with regard to workplace violence and aggression – especially for hospitals. California is reported to be the first state to bring in specific guidelines, through Cal/OSHA, for dealing with and preventing aggression and violence directed towards healthcare workers in hospitals.
The new California OSHA standard was not without pushback from hospitals. It has been reported that two labor unions representing healthcare workers in California lobbied the California Occupational Safety and Health Standards Board to adopt a new standard for specific protection against violence in the workplace. However, the California Hospital Association (CHA) opposed the standard (the CHA represents more than 400 hospitals in the state).
There was no reason given as to why the CHA opposed the standard. However it is presumed the hospitals took exception to broad terms used to reference “health care facilities” without more specific language suggesting which facilities, specifically, are covered by the standard. Thus, there could be broad interpretations employed. Same goes for the broad definitions employed for workplace violence, and threats of violence. The standard does specify aggression and violent behavior towards healthcare workers on the part of patients, visitors, fellow employees, non-facility workers, or anyone who might have had a personal relationship with a healthcare worker. However, specifics with regard to the acts, and types of aggression or violence, are described as overly broad.
The Cal/OSHA standard puts the onus on the employer to implement protocols and procedures, design and provide training for employees, and provide whatever equipment is deemed appropriate and necessary in order to mitigate workplace violence. However, the standard is short on specifics, leaving the employer to interpret the standard according to the employer’s own point of view and reference.
This could provide a challenge for both the employer, as well as the litigant should a healthcare worker file a California OSHA lawsuit citing failure to maintain a standard that has a number of ill-defined, moving parts.
There doesn’t appear much time for revising the Cal/OSHA standard, as speculation suggests it could be enacted as early as January. It is also expected that other states will use the California OSHA standard for workplace violence against healthcare workers as a template for their own governance with regard to violence, threats of violence and / or acts of aggression against healthcare workers.
Whether or not the standard will be amended going forward remains to be seen.
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