Bed Bugs & Other Annoying Issues in the Workplace The material provided herein is for...

Bed Bugs & Other Bed Bugs & Other Annoying Issues in Annoying Issues in

the Workplacethe Workplace

The material provided herein is for informational purposes only and is not intended as legal advice or

counsel.

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Please help yourself to food and drinksPlease let us know if the room temperature is too hot or coldBathrooms are located past the reception desk on the rightPlease turn OFF your cell phonesPlease complete and return surveys at the end of the seminar

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BED BUGS

Bell Environmental Services

Peter Di Eduardo

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Bed Bugs

►Blood feeders►Common in U.S. before WWII►Comeback due to:

Changes in pest control practices Increased international travel

►Hitchhike in belongings►Not known to transmit diseases

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Bed Bugs

►Hotels ►Apartments & houses►Hospitals & nursing homes►Schools►Office buildings►And spreading to...

Modes of transportation Movie theaters

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Bed Bugs

►¼ inch►Reddish brown►Oval, flat►Sometimes

confused with cockroaches or ticks

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Compare

Bed Bug German Cockroach

Nymph

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Compare

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Compare

Bed Bug Tick

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Bed Bug Bites

►Appearance depends upon sensitivity of person

►No diagnosis without specimen

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Bed Bug Habits

►Flattened bodies make them good hiders

►Prefer to hide in seams, cracks and crevices close to where people sleep or spend majority of their time

►Hiding areas marked with fecal spots (dried blood)

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Mattress & Box Spring

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Mattress & Box Spring

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Furniture

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Furniture

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Prevention?►There is no way to

prevent bed bugs from infesting an area

► In residences, encasements can prevent them from infesting mattresses & box springs

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Infestation Sites

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Bed Frames

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Furniture

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Bed Frames

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Prevention Early Detection

The best approach is to catch bed bugs at the early stage of an

infestation

Know the Signs!

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Bed Bug Signs

Stages of an Infestation

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Early Detection

►Be mindful of where you place your belongings

►Inspect your belongings when you return from traveling

►Inspect used furniture and other used items before bringing indoors

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Early Detection

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Early Detection

Know the signs and contact Bell Environmental Services

once you see them!

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Early Detection

►Dog inspections Quick & over 90%

accurate Ideal for multi-unit

buildings or large office areas

Can limit treatment areas

Roscoe

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Preparation

►Prep List Residential vs. Corporate

► What to do with clutter -- personal items, clothing, toys, books, etc.

►Treatment success depends largely upon how well an area is prepared

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Preparation

►Do not move infested items to uninfested areas unless sealed in plastic bags

►Do not move employees (patients or tenants) to uninfested locations until they and their belongings have been inspected and dealt with properly

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Preparation

►Normal wash cycle with hot water will kill all bed bug stages

►Running clothes or items through the drier for at least five minutes at most settings is also as effective

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Treatment►Cryonite®/

InstantFreeze Dry ice “snow” Pesticide free

contact kill No residues –

immediate reoccupation!

Ideal for electronic equipment &

sensitive environments

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Developing Bed Bug Protocol

►Understand seriousness of issue and HR ramifications when suspicions of bedbugs arise or specimen is discovered

►Involve: 1. Senior management

2. Human Resources3. Communications4. Facilities Management

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Developing Bed Bug Protocol

►Understand Nature of the problem

Bed bugs are not inherent to any building They’re Hitchhikers -- brought in with

employees, their bags, purses, luggage, or on furniture

Rarely is it the company’s fault that bed bugs were introduced into a building (unless proper action was not taken to eliminate a known issue)

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Developing Bed Bug Protocol

►Understand Nature of the problem When 1 bed bug is sighted, acknowledge

that there may be more Bed bugs adjust their hours and feed on

people when they are on site rather than their nocturnal schedule in a residence

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Developing Bed Bug Protocol

►Proper Diagnosis and Treatment Plan Consult with a licensed PCO How large of an area to treat? Using certified canines Importance of non-pesticide approach

o Bed bugs biological immunities to pesticideso Treatment limitationso Liabilityo Local Law 37 in NYC

Bed Bugs in the Bed Bugs in the WorkplaceWorkplace

Are you Prepared?Are you Prepared?Presented by:David Cassidy

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The Current SituationThe Current Situation

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Updated: Thu., Jan. 13, 2011

1 in 5 bugged by bedbugs

One in five Americans has either had an experience with bedbugs themselves or knows someone who has.

Seventy-eight percent of respondents were most concerned about infested hotels, while others said they were wary of picking them up at work.

"I was surprised just how pervasive the problem is," said Missy Henriksen, a vice president at the National Pest Management Association, which commissioned the online survey.

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Bed Bugs Found at New Jersey Movie Theater

Update: Tuesday, 31 Aug 2010, 4:02 PM EDT

Published: Friday, 27 Aug 2010, 6:47 PM EDT

MYFOXNY.COM – A movie theater at the Monmouth Mall in Eatontown, N.J., has been reopened after being temporarily shut down because of bed bugs found inside three of its auditoriums.

Two AMC theaters in New York City also recently had bed bug problems: One in Times Square and one in Harlem.

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Employees who work in Goldman [Sach]'s Jersey City, N.J., office tower have been moved from certain floors and ordered out of the building at times because exterminators have been in checking and spraying for bed bugs, said two separate sources at the firm. Neither source was comfortable being quoted by name, citing company policy.

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A History of Bed BugsA History of Bed Bugs

• Originally introduced to U.S. with the early colonists

• Thought to be gone from the U.S. after 1960• Several theories to explain

comeback:– Never really went away– Increase in international travel– Pest control treatments have

become more targeted and less toxic

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Office Memo: Bed Bugs Are Back

“They've moved out of the boudoir and into movie theaters, retail stores, libraries, firehouses, and inevitably, the workplace.”

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ThreatsThreats

• Damaged reputation

• Lost Revenue

• Decreased Productivity

• Litigation

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HR Issues With Bed HR Issues With Bed BugsBugs

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Legal IssuesLegal Issues• Occupational Health and Safety Administration

(OSHA)– OSHA Regulations– Whistleblower status

• Americans with Disabilities Act (ADA)– How Bed Bugs can trigger

“disabilities”/accommodation issues

• Family Medical Leave Act (FMLA)– When can someone claim FMLA leave for bedbugs?

• Workers Comp/3rd Party Negligence– The Workers Comp loophole and innovative plaintiff

attorneys

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Legal Issues, Cont’dLegal Issues, Cont’d

• Privacy and Defamation Issues• National Labor Relations Act –

concerted & protected activity

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Policy ConcernsPolicy Concerns

• Traveling Employees• In-home Service Employees• Company Uniforms• Company Vehicles• Leave Time for Extermination• Extermination Costs – Who pays?

Occupational Safety and

Health Administration

(OSHA)

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The "H" in OSHA Stands The "H" in OSHA Stands for Healthfor Health

• OSHA regulates more than just safety hazards in the workplace.

• OSHA was founded to assure workers of both safe and healthy working conditions.

• The health issues that OSHA monitors often are overlooked.

• Health issues include indoor air quality, sanitation, ergonomics, environment, workplace stress, and workplace violence

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OSHA’s General Duty OSHA’s General Duty Clause – Clause –

“The Catchall”“The Catchall”29 U.S.C. § 654, 5(a)(1)29 U.S.C. § 654, 5(a)(1)“Each employer shall furnish to each of

his employees, and a place of employment which are free from

recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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OSHA’s General OSHA’s General Environmental Environmental

Regulation Regulation 29 C.F.R. 1910.141(a)(5)29 C.F.R. 1910.141(a)(5) “Vermin control. Every enclosed workplace

shall be so constructed, equipped, and maintained, so far as reasonably practicable, as to prevent the entrance or harborage of

rodents, insects, and other vermin. A continuing and effective extermination program shall be instituted where their

presence is detected.”

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OSHA’s Whistleblower OSHA’s Whistleblower ClauseClause

29 U.S.C. §66029 U.S.C. §660• Section 11(c) of OSHA prohibits any person from

discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act.

• Rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.

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When OSHA calls…When OSHA calls…• Don’t Panic

– They can’t and won’t chase down every bedbug infestation

• Have a comprehensive written plan of attack– Show that you are aware of the situation and are

taking steps to combat the problem

• Be sure to follow any OSHA recordkeeping requirements that may be applicable to you– Business establishments classified in a specific low

hazard retail, service, finance, insurance or real estate industry are generally exempt

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Do Your homework!Do Your homework!

• Does your building code have a vermin provision that requires you to monitor bed bug issues?

• Does your local health code require you to keep your building free of insects?

• Do you have relevant policies, and if so, are you following it?

Americans with Disabilities Act

(ADA)

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Definition of “Disability” Definition of “Disability” Under the Under the ADAADA

• The basic definition of the term “disability”:– A physical or mental impairment that

“substantially limits” one or more “major life activities” of such individual

– A record of such impairment– Being regarded as having such an impairment

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““Major Life Activities”Major Life Activities”

• Caring for oneself• Performing manual

tasks• Seeing• Hearing• Eating• Communicating• Walking• Standing• Sleeping

• Bending• Speaking• Breathing• Learning• Reading• Concentrating• Thinking• Lifting• Working

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Bedbugs, Sleeping and Bedbugs, Sleeping and the ADAthe ADA

• An impairment substantially limits an individual's ability to sleep if sleep is significantly restricted as compared to the average person

• An individual would not be substantially limited in sleeping if she/he had some trouble getting to sleep or sometimes slept fitfully because of a mental impairment

• The determination of whether a particular person is substantially limited in sleeping is very fact-specific

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EEOC GuidanceEEOC GuidanceThe Story So FarThe Story So Far

When does an impairment substantially limit an individual's ability to sleep?

An impairment substantially limits an individual's ability to sleep if, due to the impairment, his/her sleep is significantly restricted as compared to the average person in the general population. These limitations must be long-term or potentially long-term as opposed to temporary to justify a finding of ADA disability.

For example, an individual who sleeps only a negligible amount without medication for many months, due to post-traumatic stress disorder, would be significantly restricted as compared to the average person in the general population and therefore would be substantially limited in sleeping. Similarly, an individual who for several months typically slept about two to three hours per night without medication, due to depression, also would be substantially limited in sleeping.

See EEOC Psychiatric Disabilities Guidance at question 11.

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Can Bedbugs be a Can Bedbugs be a DisabilityDisability

• Bedbugs themselves – Unlikely• Side Effects – Definitely

– Lack of sleep– Depression/Anxiety– Delusory Parasitosis

• Patients acquire a strong delusional belief that they are infested with parasites/insects/bugs

– Delusory Cleptoparasitosis• A form of delusion of parasitosis where the

sufferer believes the infestation is in their dwelling, rather than on or in their body

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ADA AccommodationsADA Accommodations

• Leave of absences to treat disability

• Hours of Work reassigned – sleeping issues

• Other accommodations– Work at home if workplace infested

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Extermination IssuesExtermination Issues

• Does the extermination procedure (use of chemicals, etc.) comply with OSHA regulations?– Choose your professional carefully!

• Will the extermination procedure trigger ADA-eligible illnesses with employees?– Allergies– Sick Building Syndrome– Chemical Sensitivity

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Additional IssuesAdditional Issues

• Traveling Employees• Service Employees• Uniform Policies• Company Vehicles

Family Medical Leave Act and Other Leave

Issues

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When Leave is a When Leave is a AppropriateAppropriate

Does Family Medical Leave Act Apply– To employees with bedbugs?– To employees seeking to avoid

bedbugs?

• Can you send an employee home if he or she reports having bedbugs at home?

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Employees Employees withwith BedbugsBedbugs

• Rachael Schaar v. Lehigh Valley Health Services Inc. – 3rd Circuit Case

• An employee can prove a serious health condition with lay testimony– Third Circuit does not require an employee

prove a serious health condition under the FMLA solely by a medical provider

– Lay testimony can supplement medical evidence to establish a serious health condition under the FMLA

• This will be important when dealing with employee claims of bedbugs

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Employees Seeking Employees Seeking Leave to Avoid Getting Leave to Avoid Getting

BedbugsBedbugs• Department of Labor’s Guidance on H1N1

– November, 2009 - Instructive

– The DOL noted that FMLA leave is NOT available to avoid exposure to the flu.  

– The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 

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Salaried EmployeesSalaried Employees

• Be careful when salaried employees take time off for bed bug remediation: – Cannot deduct pay for partial day

absences– Cannot deduct pay for time off unless a

bona fide plan or policy exists– Consult counsel – tricky issue

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Avoid “the Blame Avoid “the Blame Game”Game”

• Finding “the Source” is important, but beware of potential discrimination claims– Disparate Impact– Disparate Treatment

• Avoid singling out employees and be aware of the potential for:– Discrimination Claims - Disparate treatment

& impact– Harassment claims

• The Scarlet “B”– Defamation claims

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Types of Types of DiscriminationDiscrimination

• Disparate Treatment -- treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent.

• Disparate Impact -- focuses on whether or not the employer has a policy or qualification that appears to apply to everyone the same but, in fact, has a significantly greater impact on members of a protected class

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Invasion of Invasion of Privacy/DefamationPrivacy/Defamation

• Prudent employers should also make sure that that they do not breach employees’ privacy

• Prudent employers will limit discussion and disclosure of bed bugs

Workers Compensation Exception and

Third Party Litigation

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Workers CompensationWorkers Compensation• If an employee claims injury from

bedbugs at the workplace, workers compensation should cover the employer– Note: Employees can sue their employers

and their co-employees for intentional misconduct, for deliberately intentional acts and/or grossly negligent, reckless, willful or wanton misconduct. Bryan v. Jeffers, 103 N.J. Super 522 (App. Div. 1968).

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Third-Party Negligence Third-Party Negligence LawsuitsLawsuits

• NORRISTOWN — A woman forced from her Norristown apartment after it became infested with bedbugs is suing a local retail store that leased her furniture that allegedly contained the insects.

• Robin Boyd, who moved to Pottstown in June, filed a civil lawsuit against Aaron’s Sales & Lease, located at 714 Markley St., in Norristown. The woman leased a bed frame, headboard, dresser and nightstand from the store on Aug. 31, 2009, and after taking a one-hour nap that day noticed she had bug bites on her arm, according to the lawsuit.

• The infestation caused her to miss work at a local nursing home, and she eventually lost the job. At some point, perhaps due to stress from the situation she began losing clumps of hair and took to wearing a wig. She began losing weight and was prescribed medication for depression. During the Christmas holiday, she isolated herself at her Norristown residence to prevent infesting her relatives’ homes.

Protection and Policies

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First & ForemostFirst & Foremost

• This is an HR issue– Morale issues– Productivity issues– Legal issues

• Education is critical• Facilities/maintenance is important

but secondary

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How to Avoid LitigationHow to Avoid Litigation

• Have a Policy and Follow It• Documentation• Perform regular

inspections and implement preventative measures

• Provide education for staff • Have a remedial action

plan in place now

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Do You Have a Bed Bug Do You Have a Bed Bug Policy?Policy?

• Information about bed bug prevention• How to react when learning about the

presence of bed bugs– Important to assist management in proper

response

• Clarification on leave policy in the event of infestation– Are there specific work-from-home policies

& for whom is this an option?

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Handling ComplaintsHandling Complaints

• Identify an expert/point person who can handle complaints compassionately and logically

• Be open and resolution-oriented • React quickly and seek professional help• Document your procedure, including:

complaint, inspection, confirmation, cleaning, treatment, future prevention, and follow up

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Don’tsDon’ts

• Don’t try to silence employees about the problem, as this could lead to whistleblower claims or, in the Union context, NLRA violations

• Don’t play the blame game, as this could trigger a defamation claim or a discrimination claim

• Don’t “over react” -- Supervisors must be very careful in how they react to employees that may have brought bed bugs onto the premises to not foster panic

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The The Scarlet BScarlet B • Do Not Discriminate

• Do Not Retaliate

• Do Not Shun, Blame or Defame!

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Protected & Concerted Protected & Concerted ActivityActivity

• Employer cannot fire employees for engaging in protected, concerted acts (Section 7 Rights)– Concerted refusal to perform dangerous

work (even if no union)– Discussion of work issues, at work or on a

blog or anywhere – Partial strikes

• Discussion of bed bugs in the workplace would be protected and concerted

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To Pay or Not to PayTo Pay or Not to Pay

• No Good Deed Goes Unpunished – what one gets, all must get!

• Home Extermination Guidelines:– Must be a uniform rule/policy/practice– Written policy and guidelines

suggested– Do Not Discriminate or Play Favorites

Employer Liability in Employer Liability in the New Millennium: the New Millennium: Facebook, Texting Facebook, Texting

and FLSA and FLSA EnforcementEnforcementPresented by:

Chris Elko

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A Brave, New World…A Brave, New World…

• 400 Million active users• 3 Billion photos each month• 60 Million status updates each

day!!!

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Facebook and Twitter – Facebook and Twitter – A PrimerA Primer

• Facebook– Status Updates– Walls– Messages

• Twitter– Status Updates

• Automatic Soundbite

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So What?So What?• Liability• Marketing and Promotion• Policy

– What are you doing?

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Update Status Here:Update Status Here:

“I can’t believe my ______ assistant messed up ANOTHER Settlement Agreement! She isn’t even literate!

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Hostile Work Hostile Work Environment and Title Environment and Title

VIIVII• Hostile Work Environment

– One severe act of harassment or several minor acts of harassment

• Are your employees “networked”– Supervisors must be careful

• Cyber-flirting• A Facebook post lasts forever

• Title VII

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MoraleMorale• Gossip

– A “connected” workforce can result in a clogged HR Department

• When an employee leaves…– Defamation?

• Damages

– Non-Solicit

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ConfidentialityConfidentiality

• Are you waiving/violating a privilege?– Attorney client– Doctor patient

• HIPAA– Nurses fired for facebook postings

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Other Important IssuesOther Important Issues

• Doe v. XYC Corp., (2005)– 3rd Party Liability

when an Employer is on notice of pornographic use

– Policies must be enforced!

• FTC and Consumer Fraud issues– Make sure your

employees are not impacting the credibility of your brand!

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Discovery IssuesDiscovery Issues

• No special privacy right to social media– PA: McMillen v. Hummingbird Speedway,

Inc.• No expectation of privacy for Facebook or

MySpace accounts

– NY: Romano v. Steelcase Inc.• “Think before you speak, or in this case,

before you type.”

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Employee RightsEmployee Rights

• Whistleblowers– Cannot gag employees complaining

about OSHA violations or alleged Title VII violations

• Is the communication unrelated to work– NY protects off-duty activity

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Employee Rights in the Employee Rights in the Labor ContextLabor Context

• Labor is focusing on social media as a means of “spreading the word”– Dues money is used to sponser Facebook

pages• Is the communication considered

concerted activity?– An unlawful policy “prohibited employees

from making disparaging remarks when discussing the company or supervisors.”

– An unlawful policy “prohibited employees from depicting the company in any way over the internet without company permission.”

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Social Media PolicySocial Media Policy• Be inclusive – Make sure that your policy

includes all social networking websites, blogs and “wikis”, used professionally or personally

• State that the Employee Code of Conduct applies to social media commentary involving the Company or its employees

• Be clear that employees may not disclose confidential or proprietary information online

• Reserve your right to request that certain posts be deleted if they include inappropriate comments relative to the Employer

New OSHA “Distracted

Driving Initiative”

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Secretary of Labor Secretary of Labor Hilda L. Solis Hilda L. Solis

• "It is imperative that employers eliminate financial and other incentives that encourage workers to text while driving."

• "It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality."

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Where Cell Texting Is Where Cell Texting Is BannedBanned

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OSHA Violation – The OSHA Violation – The RuleRule

“When OSHA receives a credible complaint that an employer requires texting while driving or…organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice.”

http://www.osha.gov/distracted-driving/index.html

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OSHA Violations – The OSHA Violations – The Rule – Expanded Rule – Expanded

• Create a policy– “It is your responsibility and legal obligation to create

and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.”

• Do not incentivize– “Companies are in violation of the Occupational Safety

and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.”

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Policy AdvicePolicy Advice• Review the OSHA Distracted Driving

Website• Review the Department of Transportation’s

Distracted Driving Website• Recognize October’s “Drive Safely Work

Week”• Consider whether your employees are

incentivized to text while driving

FLSA – Bad FLSA – Bad Weather and the Weather and the Attorney Referral Attorney Referral

SystemSystem

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Bad WeatherBad WeatherThe Office is ClosedThe Office is Closed

• Exempt (Salaried) Employees– Cannot deduct pay for quality/quantity of

work• Measured on a weekly basis

– Accrued time off or vacation time may be deducted

• Practical issues arise with December closures• Salary must still be paid• Morale?

• Non-Exempt Hourly Employees– No requirement to pay for hours that would

have been worked but-for inclement weather

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Bad WeatherBad WeatherThe Office is OpenThe Office is Open

• Exempt Employees– The employee is not “ready, willing and

able” to work, even if it is beyond his control

– The Employer may deduct one full day pay– No Partial Day Pay!

• Non-Exempt Hourly Employees– No requirement to pay– May require use of accrued time off

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Bad WeatherBad WeatherPolicy ConsiderationsPolicy Considerations

• Who makes the decision to close and how it is communicated

• Can employees bring children to work when school is closed

• Define work-from-home options when available• Determine what policy governs when an

employee cannot get to work when the office is open

• Determine whether non-exempt employees may “make-up” time within the same work week

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DOL/ABA Attorney DOL/ABA Attorney Referral ProgramReferral Program

• Initiative began in December of 2010• Instituted by Vice President Joe Biden

and supported by the American Bar Association

• Goal is to provide expanded assistance to FLSA/FMLA claimants and alleviate the DOL workload

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DOL/ABA Attorney DOL/ABA Attorney Referral ProgramReferral Program

• Old System– 2010:

• The DOL added 350 new investigators• The DOL received 40,000 claims in 2010

– 25,000 of those claims requested assistance with minimum wage, overtime, or family medical leave claims

– 16(b) Letter• Violation occurred• “Not suitable for Court action”

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DOL/ABA Attorney DOL/ABA Attorney Referral ProgramReferral Program

• New System– When claimant’s FLSA or FMLA claim

is rejected by the DOL• Claimant provided with toll-free number

to reach a FLSA attorney• Claimant decides whether to pursue

independent cause of action against the employer

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DOL/ABA Attorney DOL/ABA Attorney Referral ProgramReferral Program

• When will a claimant be referred to a private attorney?– Complaint Intake– Complaint Review

• Before investigation

– After the DOL attempts to reconcile the issue

– At the conclusion of the DOL investigation• Complainant will receive the entire investigation

file, including documents, findings and amount of back-pay owed by the employer

Questions & Questions & Answers SessionAnswers Session

Thank you for coming!