Chapter Corner

Ready for the Regulators? Training Your Managers and Employees

Posted in: Features, April 2014

With increased enforcement by a myriad of state and federal agencies, such as the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA), do your managers and employees have the know- how to ensure your company’s compliance with workplace rules and regulations? What follows are some short scenarios to illustrate some of the issues that arise in the workplace, as well as a short primer on some of the training you should provide to your workforce. Providing training will ensure the company is better prepared to defend employment-based charges or claims and have a well-trained, smarter and, in the end, more productive workforce.

Scenario 1

Five employees at a remote worksite tell your foreman that they’re fed up with working overtime, he’s a stupid jerk, and they’re walking off the job. He tells them they’re all fired. Did he handle the situation correctly?

No. With the NLRB’s aggressive agenda, the company is probably in trouble. The employees’ walkout is more than likely “protected concerted activity” because two or more of the workers approached the foreman with a complaint about working conditions. Employees typically can’t be fired or disciplined for such activity. Regarding the comment to the foreman, surprisingly, the Labor Board has found such language to be protected, just as it has found handbook rules requiring employees to be courteous to coworkers or not be insubordinate to managers illegal. The lesson is to train your managers in what they can and cannot say or do in such situations. Review your handbook and company rules to ensure they’re square with the NLRB. Teach your managers to be better managers and communicators. If done properly, employees will deal better with workplace issues. They’d be less likely to go outside the company (e.g., filing a charge with the NLRB) to find solutions.

Scenario 2

You have water leaking from the ceiling onto energized presses and drilling equipment. A maintenance worker climbs up some old scaffolding and attempts to fix the leak. A supervisor is standing on the floor telling him to hurry up and stop the water. The employee slips and falls to the ground. Someone calls OSHA and a compliance officer shows up. Do you have a problem?

Maybe. Did the employee have on proper personal protective equipment (PPE)? Were adequate fall protection measures taken? Did the supervisor make sure the employee was properly equipped and trained to handle the problem? If the answer is no to any of these questions, an OSHA citation will more than likely follow. The lesson is that OSHA has specific training requirements for both employees and managers. In this scenario, the employee should have been trained in the use of PPE and fall protection measures, at the least; same with the supervisor. The employer needs to prove the training took place. Documentation is essential. One other note, if properly trained and the employee/supervisor still does not follow OSHA-required protections, worker misconduct is a defense to a citation when your workforce does not follow the rules.

Scenario 3

John is an equipment operator. He’s also a minority. John is terminated for misconduct. You receive an e-mail from John claiming he was discriminated against and harassed based on his race. What do you do?

Just because John is gone doesn’t mean your obligations regarding his allegations end. If the employer knows or should have known discriminatory behavior may have occurred, it has an obligation to remedy any wrongdoing. The lesson is that the company should investigate John’s claims. This includes interviewing John, if he’s willing, and any employees (or managers) who may have witnessed John’s claims. Document your efforts. If you conclude harassment or discriminatory behavior occurred, take proper disciplinary action against the guilty parties. Finally, do a short training session with your supervisors and employees. A 15-minute review of your equal employment opportunity and harassment policies is appropriate. Again, document the training. As a matter of course, such training (a longer version) should take place on a yearly basis. These actions will help to ensure a positive outcome should John file a claim with the state human rights division or the EEOC.

These are common situations where employers may run afoul of state and federal workplace rules and regulations. There are certainly many other potential pitfalls out there. Your best defense is to be ahead of the game. That starts with getting your managers and employees the workplace training they need to succeed.

Joseph Dreesen is a Shareholder in the Omaha, Nebraska, office of Jackson Lewis PC. Dreesen works with employers throughout the country on numerous employment and labor law issues. He has successfully negotiated numerous collective bargaining agreements and also has an extensive OSHA and wage and hour practice.