Good afternoon, and welcome to Labor of Law. A new ruling from the OSHA review commission—and a win for the Labor Department—confronts workplace violence liability for employers. The First Circuit's out with a new age-bias opinionagainst a real estate company, and a Texas federal judge slams a Fifth Circuit panel over “inaccurate” statements. Scroll down for more Who Got the Work, notable moves and more.

Tips, feedback or just say hi: Contact Erin Mulvaney at [email protected] and on Twitter @erinmulvaney & Mike Scarcella at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

 

 

 

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OSHA Ruling Tests Workplace Violence Liability

In 2012, a health care worker was stabbed to death on a front lawn during a home visit to a client with a history of mental illness and violence. Should employer Integra Health management, which provides social services, be accountable for her death?

The Occupational Safety and Health Review Commission recently ruled for labor regulators, upholding citations against the company. The case, closely watched by the business community and worker safety groups, involved several years of administrative wrangling. The ruling is getting some attention as a test of the contours of liability for workplace violence.

>> What the OSHA review commission said: The review commission, ruling for the Labor Department, concluded that Integra Health violated the “general duty” clause of the OSHA Act. That provision says employers must “furnish to each of his employees employment 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.”

The company, according to the commission, failed to adequately address the risk of its employees from being physically assaulted. “The record establishes that Integra could have taken precautions preventing injury by hiring, training, performing, and assigning work appropriately, but chose not to in the interest of saving money and time,” the commission concluded.

The decision against Integra included a $10,500 penalty and requirement to provide a workplace violence prevention program. An administrative law judge twice upheld the OSHA citations in 2015. Kevin McCormick of Whiteford Taylor Preston in Baltimore represented the company.

>> The case attracted substantial amicus attention. Unions, worker safety and business groups weighed in on the appeal.

The U.S. Chamber of Commerce was represented by Washington-based Jones Daypartner Jackie Holmes, who advises companies on OSHA and labor risks. The Chamber's amicus brief argued the “general duty” clause does not apply to the normal activities of business.

“Human interaction, of course, is an essential component of numerous businesses. And human interaction carries a small but irreducible risk of human misbehavior. Here, the population Integra serves presents potentially elevated risks.”

The National Council for Occupational Safety and Health said health care workers are frequent victims of workplace violence and strong protections are needed. The group's amicus brief, by Randy Rabinowitz, executive director, argued Integra had the ability to reduce the risk of violence through training and other measures.

>> Watching now: “How far will it be extended? “The commission, which issues about 10 decisions a year, does not often rule on how liable a company must be for workplace violence. It's been several years since such a ruling but the debate over workplace safety is not new, said Seyfarth Shaw partner Brent Clark.

“The Integra decision is significant and controversial at the same time,” Clark said. “The court is essentially saying the employer should have anticipated that it was reasonably foreseeable that this particular individual would commit this violence. How does it know? Lightning never struck before, But today, I am supposed to anticipate that someone was going to get hit by lightning?” One big question that Clark raised: “Now the question is, how far will it be extended?”

Fisher & Phillips partner Ed Foulke, who previously served as the head of OSHA from 2006 to 2008, said the “general duty” clause is in play because there's no standard for workplace violence. The commission's ruling in the Integra Health case, while fact-specific, provides some guidance for employers. “You, as an employer, shouldn't close your eyes to stuff. You need to look at the reasonable foreseeability. Employers can't be held to hazards over which they can't control. This really gives the test.”

 

 

 

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Who Got the Work

>> Seyfarth Shaw's Robert Whitman and Littler Mendelson's Gary Liebermanrepresented PNC Investments LLC in a whistleblower case at the U.S. Labor Department. An agency appeals panel has upheld the dismissal of a complaint that was filed more than three years after the termination. Under the Consumer Financial Protection Act of 2010, “a retaliation complaint must be filed within 180 days of the alleged adverse action,” the panel wrote.

>> Lawyers from Mayer Brown—including Evan Tager and Archis Parasharami, co-chair of the firm's consumer litigation and class actions practice—successfully defended Lyft Inc. in an arbitration dispute in the U.S. Court of Appeals for the First Circuit. Shannon Liss-Riordan of Lichten & Liss-Riordan represented the driver. The appeals court, with retired Justice David Souter sitting, upheld a trial court judgment that the parties had a valid and enforcement agreement to arbitrate. Read the ruling.

>> Firms hired by the California Assembly in 2018 to conduct harassment investigations included: Littler Mendelson, Stoel Rives LLP and Van Dermyden Maddux Investigations. The California Senate hired the Law Offices of Amy Oppenheimer, Van Dermyden Maddux and Gibson, Dunn & Crutcher to handle investigations, the Associated Press reported.

>> Holland & Knight represented the real estate company Cushman & Wakefield in the First Circuit, which upheld a $1.3 million age-bias jury verdict. A unanimous three-judge panel concluded there was a legally sufficient basis for the verdict. Mark Szal of Szal Law Group and John Dennehy of Dennehy Law represented the plaintiff. Read the opinion.

>> Winston & Strawn partners Cardelle Spangler, Diana Hughes and Jeffrey Kessler, co-executive chairman of the firm, are on the team representing U.S. women's soccer players in a class action lawsuit that accuses the U.S. Soccer Federation of bias and unequal treatment to the women compared to male players. Bloomberg Law has more here.

>> The law firm Consovoy McCarthy Park is representing Texas plaintiffs who are challenging the state's mandatory bar fees. The complaint says the attorneys do not support the bar's “diversity initiatives” or programs aimed at helping immigrants who have crossed the border illegally. Read more here.

Around the Water Cooler

>> A Houston federal judge pushed back against the Fifth Circuit's implication that he was biased against mandatory arbitration. U.S. District Judge Keith Ellison(above) chided the 5th Circuit panel, led by Judge Jerry Smith, for “misleading and inaccurate” statements. [Law.com]

>> Business groups dominate Labor Secretary Alexander Acosta's schedule. Public records show Acosta rarely meets with unions. [Politico]

>> Ride-hailing company Uber Technologies Inc. has agreed to pay $20 million to a class of drivers in a proposed settlement agreement Monday that could end more than five years of litigation over how the company classifies its drivers. [Law.com] The New York times has more here.

>>Teachers in California are the latest to file an action testing the bounds of the U.S. Supreme Court's decision in Janus v. AFSCME that eliminated certain public-sector union fees. [The Recorder]

>> The U.S. Labor Department's long-anticipated overtime proposal came down late last week. Here's a snapshot of what management-side lawyers are saying. [The National Law Journal]

>> The EEOC is suing Party City, alleging the company fired a pregnant employee because of health complications stemming from her battle with cervical cancer. [Houston Chronicle]