OSHA Suit Linked to Bullying

February 20, 2013 by Leave a Comment

osha-logoThe U.S. Occupational Health and Safety Administration (OSHA) has initiated what appears to be one of its first – if not its first – lawsuit involving  workplace bullying.

The U.S. Department of Labor (DOL) filed the lawsuit earlier this month against a Fort Lauderdale business owner who fired a worker after the worker complained to OSHA that the worker was subjected to discrimination because he complained about hostile workplace conditions at the company.

According to an OSHA press release, Duane Thomas Marine Construction LLC and its owner, Duane Thomas, are charged with terminating the worker in violation of Section 11(c) of the Occupational Safety and Health Act (OSH Act).  Section 11 (c)  prohibits discriminating against any employee because the employee has filed a complaint related to the OSH Act or has exercised a right  afforded by the Act.  The employee was not identified by OSHA.

The case  involves what appears to be essentially a campaign of workplace bullying.

The OSHA press release states the employee complained that Thomas on numerous occasions between Dec. 9, 2009 and Feb. 25, 2011 “committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.”   The employee worked directly for Thomas at the company’s custom marine dock installation services site on Marco Island.

The case is significant because the General Duty Clause of the OSH Act requires employers to provide safe and healthful workplaces for their employees.  However, OSHA has not shown any leadership with respect to workplace bullying, even  though overwhelming research shows that workplace bullying causes potentially serious short and long-term health consequences.  OSHA typically enforces safety standards that relate to traditional industrial hazards, such as high noise levels, chemical exposure, electrical or fall hazards, etc.

Shortly after Thomas was notified of the OSHA complaint, OSHA states that Thomas  had the company’s computer passwords changed to deny the employee remote access to files and then terminated the employee.

The lawsuit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in the case and to bar the employer from committing  future violations of the OSH Act.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, said, “Employees have the right to raise workplace violence concerns without fear of retaliation.”

The lawsuit, Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, was filed in the U.S. District Court for the Middle District of Florida, Fort Myers Division.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor requesting  an investigation by OSHA’s Whistleblower Protection Program.   The  program enforces the whistleblower provisions of more than 20 statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Filed Under: DISPATCHES Tagged With: , , Duane Thomas, , , , Marco Island, Occupational Safety and Health Act of 1970, , Section 11 (c) of the OSH Act, , , , The OSH Act, Whistleblower,

Second-Hand Workplace Abuse

February 14, 2013 by Leave a Comment

second hand smokeNote: For a related story, see Bullying Causes Coworker Stress. Pat

 

 

Bosses who bully their subordinates also  damage co-workers who see or hear about the abuse, much like second-hand smoke affects those in the vicinity of a smoker.

That is the conclusion of a study published recently  in The Journal of Social Psychology, “An Investigation of Abusive Supervision, Vicarious Abuse Supervision, and Their Joint Impacts.”   The study was conducted by Paul Harvey from the University of New Hampshire,  Kenneth Harris and Raina Harris from Indiana University Southeast and Melissa Cast from New Mexico State University.”

The study defines abusive supervision as a dysfunctional type of leadership that includes a sustained display of hostile verbal and nonverbal behaviors toward subordinates. The authors say abusive supervision generally  is positively related to  job frustration and co-worker abuse and  negatively related to perceived organizational support.

“Although the effects of abusive supervision may not be physically harmful as other types of dysfunctional behavior (workplace violence or aggression), the actions are likely to leave longer lasting wounds. One reason for these long-lasting “scars” is that workplace violence and aggression are often stopped quickly, whereas abusive supervisory behaviors (such as being rude or giving the silent treatment) can continue for considerable times,” the researchers state.

Vicarious supervisory abuse occurs when an employee hears rumors of abusive behavior from coworkers, reads about such behaviors in an email, or actually witnesses the abuse of a coworker.

The report posits that workers who do not experience the abuse first hand may experience similar negative effects as the worker who is being abused. They may realize they could become targets for abuse by the same  supervisor  or they could be transferred to work under an abusive supervisor.

According to the study, employees expect to be treated with respect and consideration by their supervisors. In exchange, they work hard, have positive attitudes about their work and the workplace, and treat others with consideration. When abusive supervision occurs, employees are likely to feel less positively about their work (higher frustration and lower perceived organizational support) and react negatively toward coworkers who are a “safe target” upon which to  vent aggression.

The researchers found similar negative impacts of first-hand supervisory abuse and second-hand vicarious supervisory abuse: greater job frustration, tendency to abuse other coworkers, and a lack of perceived organizational support.

 The researchers queried a sample of 233 people who work in a wide range of occupations in the Southeast United States. Demographically, the sample was 46 percent men, 86 percent white, had an average age of 42.6 years, had worked in their job for seven years, had worked at their company for 10 years, and worked an average of 46 hours a week. Survey respondents were asked about supervisory abuse, vicarious supervisory abuse, job frustration, perceived organizational support, and coworker abuse.

“Our research suggests that vicarious abusive supervision is as likely as abusive supervision to negatively affect desired outcomes, with the worst outcomes resulting when both vicarious abusive supervision and abusive supervision are present,” the researchers said. “Top management needs further education regarding the potential impacts of vicarious abuse supervision on employees to prevent and/or mitigate the effects of such abuse.”

Filed Under: DISPATCHES Tagged With: , , , , , , , , , , , , , , , ,

Strippers are ‘Employees’

February 10, 2013 by Leave a Comment

When is a worker  an employee who is entitled to a salary and unemployment benefits?

This question was at issue in a Kansas case that sheds light on the exploitative world of strip clubs and so-called gentlemen clubs.

Shortly after Milano’s, Inc. purchased a Topeka strip club called Club Orleans in 2002,  company President John Samples began treating the club’s exotic dancers as independent contractors rather than employees.  This meant the dancers were no longer paid even a nominal weekly wage, instead earning only tips paid by customers of Club Orleans. And they were not paid health or insurance benefits.

In 2005,  one of the dancers filed an unemployment claim, prompting the state to assign an auditor to investigate Milano’s. The auditor concluded  the dancers were not independent contractors but were employees under Kansas law.

Milano’s challenged the auditor’s determination on various technical grounds and two  lower courts upheld the determination. The case finally reached the Supreme Court of the State of Kansas.

Earlier this month, the Kansas Supreme Court  ruled that the determinative question was whether the dancers had the status of employees under common law rules that determine the employer-employee relationship. The Court said in Milano’s, Inc. v. Dep’t of Labor that the critical common-law factor in the analysis was the employer’s right of control over the employee and her work.

The record showed that the dancers were required to sign what was essentially  a “contract for hire” in the form of an application to work at Milano’s. The contract required the dancers to  abide by the house rules and gave Milano’s the right to fine or terminate the dancers.  Furthermore,  Milano’s, without consulting the dancers, adopted a  minimum tip policy for various types of dances and required the dancers to accept drinks from customers. Milano’s enforced the house rules.

According to the Court:

“Ample substantial competent evidence in the record before us, as echoed in the factual findings below, demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans. Most telling, the house set various rules, and dancers’ violations of those rules were punishable by fines and termination.”

The Court concluded that exotic dancers subject to a right of control by the owner of the club where they perform are employees under the “usual common law rules” incorporated into K.S.A. 44-703(i)(1)(B) of the Kansas Employment Security Law.

Although the ruling was limited to unemployment insurance benefits, it could have an impact on other independent contractors who seek employee status to be eligible for employment benefits such as workers compensation, disability benefits, etc.

Wage theft is epidemic  in the United States, according to the Progressive States Network (PSN),  a non-partisan, non-profit organization dedicated to supporting the work of progressive state legislators around the country and to the advancement of state policies that support issues that matter to working families.

Wage theft occurs when employers  misclassify workers as exempt employees when they are actually non-expempt employees (who are entitled to overtime)  or  misclassify workers as  independent contractors when they are truly employees.

The PSN estimates that more than 60% of low-wage workers suffer wage violations each week. On average, the PSN reports, low-wage workers lose $51 per week to wage theft, or $2,634 per year.  For low-wage workers, that amounts to 15% of their annual income, at average earnings of $17,616 per year.

 

Filed Under: DISPATCHES Tagged With: Contract for Hire, definition of employee, , Inc. v. Dep't of Labor", , Kansas Supreme Court, Milano's, , Supreme Court of the State of Kansas,
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