Hockey Faceoff Raises Bigger Questions

This is an era that is challenging the violent foundations of America’s major sporting institutions.

On a broader scale, it also is testing the extent of an employer’s responsibility to its employees.

This week, ten former hockey players for the National Hockey League (NHL) filed a federal class action lawsuit alleging the NHL failed to protect them from concussions and injuries that allegedly contribute to dementia and other brain ailments later in life.

The NHL lawsuit follows the settlement  last August of a similar lawsuit against the National Football League in which the NFL agreed to pay $765 million to settle claims from former players alleging the NFL failed to protect them from brain damage caused by repeated concussions.

Off the field or rink, if an employer knowingly permits working conditions that cause employees to suffer serious injury, the employer might be investigated and perhaps even prosecuted by federal authorities. (i.e.  prosecution of Massey Coal Mine official, 2012).

The Occupational Safety and Health  Act requires employers to provide their employees with work and a workplace free from recognized, serious hazards.  The Occupational Safety and Health Administration regularly investigates employers who fail to provide workers with proper safety equipment, resulting in injuries.

Why are injuries that stem from working in a mine or with heavy machinery more serious than injuries that result from playing a professional sport?  Professional sports may be big business but they are fundamentally just entertainment. Shouldn’t the U.S. Department of Labor hold all employers to the same standard?

Unnecessary Violence

I attended hockey games in the 1990s because I enjoyed watching the skill of players on ice skates handling a hockey puck  traveling 100 miles per hour down the ice.  But each game featured  players slammed violently against the plastic partitions and bloody battles over nothing more than macho posturing. I stopped going because it was too violent.

One of the players I watched in Pittsburgh was Bradley Aitken, who is a named plaintiff in the NHL  lawsuit.

It never occurred to me that Aiken and other players were potentially incurring permanent brain damages  but, according to the lawsuit, the NHL did know and still did nothing to protect the players.

The  NHL made it a penalty in 2010 to target a player’s head but still permits fighting and body checking.  Many hockey teams employ “enforcers” whose main job is to fight or violently body-check opponents.

“The NHL’s active and purposeful concealment of the severe risks of brain injuries exposed players to unnecessary dangers they could have avoided had the NHL provided them with truthful and accurate information and taken appropriate action to prevent needless harm,” the lawsuit says.

The players seek damages and court-approved, NHL-sponsored medical monitoring for the players’ brain trauma and/or injuries.

Bill Daly, the league’s Deputy Commissioner, issued a statement Monday: “ … [W]e are completely satisfied with the responsible manner in which the league and the players’ association have managed player safety over time, including with respect to head injuries and concussions.”

The NHL lawsuit was filed in United States District Court for the District of Columbia on behalf of players who retired on or before February 14, 2013.

 

Other Federal Laws

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

Some experts say the Occupational Safety and Health Administration should take the lead on combating workplace bullying.*  There is overwhelming evidence that workplace bullying can lead to serious injury and even death.  In fact, a term has been coined for workers who are driven to suicide as a result of bullying – “bullycide.”  In several other countries, workplace bullying is considered a health and safety issues and is regulated by a federal agency like OSHA. 

The Occupational Safety and Health Administration in May 2011 adopted a safety program for its own workers that includes a workplace anti-bully policy. The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual,  which outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.

OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “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 … .” However, OSHA has not enforced that provision with respect to workplace bullying.

The stated purpose of the workplace bullying policy adopted by OSHA for its own workers,  contained in the manual’s “Violence in the Workplace” chapter. is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”

Here is the OSHA General Duty Clause, Section 5(a)(1) SEC. 5:

Duties

(a) Each employer —

(2) shall comply with occupational safety and health standards promulgated under this Act.

(1) shall 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 …

*See Susan Harthill. “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.” University of Cincinnati Law Review 78.4 (2010): 1250-1306.

WAGE AND HOUR LAWS

The Fair Labor Standards Act (FLSA) does not address workplace bullying per se but it can be used to combat certain types of abuse. The FLSA establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.  The FLSA is administered by the U.S. Department of Labor Wage and Hour Division  If one aspect of the bullying campaign is failure to pay proper wages or overtime, for example, the FLSA is one potential remedy.

THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act  (NLRA) was passed in 1935 to protect the right of employees in the private sector to create labor unions, engage in collective bargaining and to take part in strikes. The act is also known as the Wagner Act, after its sponsor, Sen. Robert F. Wagner.  The act is regulated by the National Labor Relations Board.

 Specifically, the National Labor Relations Board protects the rights of employees to engage in “protected concerted activity,”  which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.  A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

A few examples of protected concerted activities are:

  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are employed by federal, state, or local governments, agricultural laborers, some close relatives of the employer, domestic servants in a home, independent contractors, employers subject to the Railway Labor Act, etc.

FAMILY AND MEDICAL LEAVE ACT

The Familiy and Medical Leave Act (FMLA offers potential help for employees who are suffering health effects from workplace abuse.  Administered by the Wage and Hour Division of the U.S. Department of Labor, it  entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:

-the birth of a child and to care for the newborn child within one year of birth;

-the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

-to care for the employee’s spouse, child, or parent who has a serious health condition;

a serious health condition that makes the employee unable to perform the essential functions of his or her job;

– any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).