Leave Protections Expanded for Employee Victims of Violence
Gov. Gavin Newsom has signed into law a bill that provides a right to paid time off and other protections for employees who are victims of violence, including threats, assaults, stalking and domestic abuse.
AB 2499 makes significant changes to California’s “jury, court and victim time off” law by expanding instances when a victim of a “qualifying act of violence” can take time off, and provides protections against retaliation for taking that paid time off. The law already requires that employers provide time off for workers who are on juries or have to appear in court.
The new law also requires employers to provide reasonable accommodation to employees who are victims of violence, in a process that’s akin to the Americans with Disabilities Act’s interactive process.
Current law
Under current law, employers are barred from discriminating or retaliating against a worker based on their status as a victim of crime or abuse, for taking time off for jury duty or to comply with a subpoena or other court order.
As well, firms with 25 or more workers may not discriminate or retaliating against an employee who is a victim of crime or abuse from taking time off:
- To seek medical attention for injuries related to the crime or abuse,
- To obtain services as a result of the crime or abuse, or
- To participate in actions to increase their safety from possible future crimes or abuse.
Changes under AB 2499
AB 2499 replaces the term “victim of crime or abuse” with an individual against whom a “qualifying act of violence” (QAV) is committed, which includes:
- Domestic violence,
- Sexual assault,
- Stalking, or
- An act, conduct or pattern of conduct in which an individual:
- Causes bodily injury or death to another,
- Exhibits or uses a firearm or other dangerous weapon against another, or
- Uses or makes a reasonably perceived or actual threat against another to cause physical injury or death.
The law also extends protections to employees who need to take time off if they have a family member who is the victim of a QAV. “Family” includes:
- A child, parent, grandparent, grandchild, sibling, spouse or domestic partner; or
- A “designated person” who is blood-related or whose association with the employee is equivalent to a family relationship.
It also bars employers with 25 or more employees from discriminating or retaliating against a victim of QAV or whose family member is a victim, for taking time off to:
- Obtain relief, including restraining orders.
- Obtain medical attention after a QAV.
- Seek assistance from a victim services organization.
- Seek mental health services related to a QAV.
- Recover from QAV-related injuries.
Reasonable accommodation
Under an ADA-like component to the new law, employers are required to engage in an interactive process to determine effective accommodations if an employee:
- Discloses the fact they or a family member is a victim of a QAV, and
- Requests accommodation for safety reasons.
Some examples of reasonable accommodations include:
- Work transfers or reassignments,
- Modified schedules,
- Changed workstation or telephone,
- Lock installation, and
- Temporary time off.
However, organizations won’t be required to provide accommodation if it would pose an undue hardship to them, including if it would violate their duty to maintain a safe workplace.
Notification and paid time off
The new law allows victims to use paid vacation or sick time during any QAV-related leave they take.
If the leave is granted as an accommodation under the Family and Medical Leave Act, the paid leave must run concurrently. Employers may restrict leave to the following:
- Twelve weeks for an employee who is a victim.
- Ten days if a worker’s family member is a victim.
- Five days if a worker’s family member is a victim and needs help relocating.
The takeaway
California employers will be required to provide notice to their employees that informs them of their rights under the law when they are hired and if an employee informs the organization that they are a QAV victim.
This is one of those laws that should spur you to seek legal counsel if confronted with a request for time off, and especially if the affected worker requests reasonable accommodation.
This Insurance Can Help You Survive Another Business’s Disaster
November of 2011, floods inundated large parts of central Thailand, including thousands of factories that made everything from automotive parts and hard disk drives to eyeglass lenses and air conditioners. In addition to the human and economic cost in Thailand, the disaster affected businesses around the world.
Carmakers in Detroit shut down because they could not get the parts they needed and half of the world’s hard disk drive production was wiped out, leaving computer manufacturers with stalled assembly lines. When disasters like this occur, businesses around the globe feel the effects.
In addition to making advance arrangements for alternative suppliers, businesses can protect themselves by purchasing two types of insurance coverage: Contingent business interruption, and supply chain insurance.
Contingent business interruption
Contingent business interruption insurance, also called business income from dependent properties, pays for a business’s lost profit plus continuing expenses when it must slow or stop operations because of damage to another business’s property.
These other businesses can be customers or suppliers. For example, if a motorcycle dealership was left with no bikes to sell because its supplier in Japan suffered a fire, the insurance would make up part of the lost income.
The damage must result from a cause of loss that the insurance policy covers, such as fire or a hurricane. This is important because standard property insurance policies do not cover losses caused by catastrophes such as floods and earthquakes.
Supply chain coverage
Supply chain insurance takes contingent business interruption a step further. It covers income lost because of damage to a supplier’s or customer’s property. However, it also covers losses resulting from events that do not cause physical damage. These may include:
- Labor disruptions
- Production process problems
- Trade disputes
- Wars
- Political turmoil
- Closed roads, bridges, railroads and shipping channels
- Public health crises
- Actions by regulators
- Financial difficulties
Businesses often have different tiers of suppliers, with key suppliers in the top tier and less important ones in the lower tiers. It is common for them to insure only the top tier.
However, insurers are increasingly offering multi-tier coverage. This applies to the business’s entire supply chain. Multi-tier coverage provides a more comprehensive solution for the business while also spreading out the insurer’s risk.
Some insurers offer options. One lets policyholders choose between measuring losses in terms of gross earnings or number of units from the supplier. Some also offer agreed-value coverage, which eliminates penalties for buying amounts of insurance less than the amounts of value at risk.
Businesses should determine where they are vulnerable to supply chain losses and develop back-up plans for dealing with unexpected disruptions. These could include reserves of the needed supplies and contracts with alternative suppliers.
Insurance can help the business recover from a supply chain loss after the fact. Advance planning can help make that loss as small as possible.
If you would like to know more about business interruption insurance, don’t hesitate to contact us.
Preventing Carpal Tunnel Syndrome in Your Staff
Carpal tunnel syndrome is the bane of the office worker and if an employee gets it from repetitive motion work in front of the computer, the employer can end up with a costly workers’ comp claim on its hands, particularly if doctors call for surgery to remedy the injury.
That’s why it’s important that companies focus on prevention by making small changes to how their employees work in jobs that involve repetitive motions, like working on a computer, a cash register, a restaurant and in many manual labor and manufacturing occupations.
Carpal tunnel syndrome is triggered when the nerve that runs from your forearm to your wrist gets pinched at the wrist. This muscle controls a few of the small muscles in the hand and fingers as well as all sensations, and it is a common workplace injury that is caused by repetitive motions, particularly among people who are frequently using a keyboard and mouse.
Here’s a look at this all-too-common affliction and how you can help your employees avoid it.
Symptoms
There are several symptoms that usually occur when an employee has carpal tunnel. The first is a frequent burning, itching or tingling feeling in the palm of your hand. Often people say their fingers feel swollen when there is no visible swelling.
Signs of carpal tunnel syndrome often occur at night and can wake the sufferer up with the need to shake out their wrists as if they have fallen asleep. Another common symptom is decreased strength in your hands that may make it difficult to get a tight grip on something or to pick up tiny objects with your fingers.
Prevention
Train all of your employees who spend long hours behind a desk or typing on a computer in the following preventive measures for carpal tunnel:
Provide chairs with sturdy back support that promote sitting up straight and prevent workers from slouching.
Good posture is key. Employees should adjust the height of their chairs so that their arms and wrist are level. Do not bend your wrist all the way up or down when using a keyboard. A relaxed middle position with the wrists parallel to the floor is best. Keep your keyboard at elbow height or slightly lower.
Replace old keyboards and other desk tools with ergonomically designed ones. For example, alternative geometry keyboards (Microsoft Natural Keyboard, Apple Adjustable Keyboard) allow the user to adjust and modify hand positions, as well as adjust key tension. Most have a split or slanted keyboard that places the wrists at an angle.
Employees should make sure that their computer mouse is comfortable to use and doesn’t strain their wrist.
Provide wrist rests, which fit under most keyboards and can help keep the wrists and fingers in a comfortable position.
Helping sufferers
You should caution your susceptible staff that curing carpal tunnel syndrome is a lengthy and painful process and many cases require surgery that can be performed on an outpatient basis. If they develop the condition on the job, it may be considered a workers’ compensation insurance claim and could involve medication and, in serious cases, surgery.
After surgery, the employee will need to wear a brace and not use their hand(s) for a significant period of time. And rehabilitation may also be in order to ensure their hand(s) heal properly.
If you are starting to see dollar signs reading this, you are right. The process will cost your company time, lost productivity and money. If the claim includes surgery, it could affect your workers’ comp experience as well and possibly result in a rate increase.
Why It Is Important to Review Your Business Insurance Annually
One of the keys to managing risks when you first start a business is getting the right insurance to cover your operations, property and potential liabilities.
Unfortunately, many business owners fail to update their policies and just renew them year after year even if the company has grown, expanded operations and facilities, and added new equipment and property. If this is the case, the old coverage would be insufficient.
Business owners should review their policies every year to catch any omissions and make sure they are not underinsured. It is common for smaller businesses to secure a basic business owner’s policy (BOP) and workers’ comp when they first get started. A BOP includes:
- Property insurance for buildings and contents owned by the company.
- Business interruption insurance, which covers the loss of income resulting from a fire or other catastrophe that disrupts the operation of the business.
- Liability protection, which covers your company’s legal responsibility for the harm it may cause to others. This harm is a result of things that you and your employees do or fail to do in your business operations that may cause bodily injury or property damage due to defective products, faulty installations and errors in services provided.
Outgrowing BOP coverage
As your business expands, you may outgrow the BOP and need additional coverage to manage your risks. Some examples include the following:
- Workers’ comp. While you likely added a workers’ comp policy when you made your first hire, you will need to update it as you add more staff. If you don’t, when your insurer audits you, you may face a hefty bill for additional premium. Be diligent about your policy and inform your insurer as you grow.
- Excess umbrella or liability coverage. You should consider this insurance to cover claims that exceed your BOP’s limit, providing you with an added layer of protection to protect your assets.
- Professional liability insurance. These policies provide coverage for mistakes for any professional services you provide. This used to be mainly for doctors, attorneys and accountants, but as our service sector has expanded it includes services provided by coders and software developers, appraisers, consultants, real estate brokers, graphic designers and home inspectors, among others.
- Auto, non-owned and hired coverage. This protects business owners if an employee has an accident while driving a rental or personal vehicle on the job.
- Employment practices liability insurance. This covers human resources issues related to discrimination, harassment and termination.
- Commercial auto insurance. This coverage protects autos that are not under a personal policy.
- Directors and officers liability coverage. This protects officers and directors in the event they are sued for wrongful acts while on duty.
Depending on the business, some or most of these insurance options may be required for adequate protection. Annual reviews with us are ideal for discussing your options. Make sure these elements are considered:
- If computers, equipment or other types of property have been added, this would be reason to increase policy limits.
- While revenue is an important consideration, it is also important to remember that it is a potential liability.
- A general liability or BOP may be affected if the owner has moved, added or closed locations.
- Hired and non-hired auto insurance is necessary if workers are driving frequently in rented vehicles.
- For specific types of work and services, employers may need additional endorsements for their general liability policies.
- People who are serving new industries or clients may have problems with their professional liability coverage if they have large amounts of high-risk industries or customers.
- If you experience an increase in the number of workers you have, or there is a higher turnover rate, it is important to think about employment practices liability coverage. And as mentioned, your workers’ comp policy should be updated to reflect any staffing changes and that you categorize your workers properly.
Businesses Suffer as Employee Theft Grows
Organizations around the world lose an estimated 5% of their annual revenues to occupational fraud, according to a survey by the Association of Certified Fraud Examiners (ACFE).
The association estimates that U.S. businesses lose some $50 billion a year to employee theft, and that 75% of employees have stolen at least once from their employer — and 37% have stolen at least twice. It also estimates that about 33% of business bankruptcies are in part due to employee theft.
So, what can your organization do to avoid falling victim? The U.S. Small Business Administration and the ACFE recommend that companies:
Use pre-employment background checks — Making the right hiring decision can greatly reduce the risk of future heartache.
Basic pre-employment background checks are a good business practice, especially for employees who will be handling cash, high-value merchandise, or having access to sensitive customer or financial data.
But be aware that laws on background checks vary from state to state and if you go too far in your check, you may be in breach of the law and risk being sued. Recently the U.S. Equal Employment Opportunity Commission raised concerns that criminal background checks may disproportionately discriminate against some racial groups.
Check candidate references — It’s surprising how few employers check candidates’ references. Make a practice of calling all references, particularly if they are former employers or supervisors.
If your candidate has a history of fraudulent behavior, then you’ll want to know about it before you hand them a job offer.
While some former employers may be loath to tell you anything bad, they will often give you cues in the conversation that the employee may have had some problems.
Implement a fraud hotline — Occupational fraud is far more likely to be detected by a tip than by any other method.
More than 40% of all cases were detected by a tip — with the majority of them coming from employees of the victim organization. There are several providers of hotline services that can help implement an anonymous tip-reporting system for businesses of all sizes and industries.
Conduct regular audits — Regular audits can help you detect theft and fraud and can be a significant deterrent to fraud or criminal activity, because many perpetrators of workplace fraud seize opportunity where weak internal controls exist.
You should identify high-risk areas for your business and audit for violations on a six- to 12-month basis. Items to look at include business expense reports, cash and sales reconciliation, vacation and sick day reports, and violations of e-mail/social media or Web-use policies.
Recognize the signs — Studies show that perpetrators of workplace crime or fraud do so because they are either under pressure, feel underappreciated or perceive that management behavior is unethical or unfair.
They rationalize their behavior based on the fact that they feel they are owed something or deserve it.
Some of the potential red flags to look out for include:
- Not taking vacations. Many violations are discovered while the perpetrator is on vacation.
- Being overly protective or exclusive about their workspace.
- Employees that prefer to be unsupervised by working after hours or taking work home.
- Financial records sometimes disappearing.
- Unexplained debt.
- An employee living beyond their means.
Set the right management tone — One of the best techniques for preventing and combating employee theft or fraud is to create and communicate a business climate that shows that you take it seriously. You may want to consider:
- Reconciling statements on a regular basis to check for fraudulent activity.
- Holding regular one-on-one review meetings with employees.
- Offering to assist workers who are experiencing stress or difficult times.
- Having an open-door policy that gives employees the opportunity to speak freely and share their concerns about potential violations.
- Creating strong internal controls.
- Requiring employees to take vacations.
You should also treat unusual transactions with suspicion and trust your instincts.
Secure employee theft insurance
Employee dishonesty insurance coverage — sometimes referred to as fidelity bond, crime coverage or crime fidelity insurance — protects a small business employer from a financial loss as a result of fraudulent acts by employees.
The financial loss can be caused by an employee’s theft of property, money or securities owned by the small business.
Cal/OSHA Proposed Workplace Violence Prevention Rules Muddy the Waters
Cal/OSHA has proposed new regulations that would incorporate California’s new workplace violence prevention law — which took effect July 1 — into Title 8, the set of regulations that covers workplace safety in the Golden State.
However, the proposed rules add a number of new requirements that some safety observers say would be unworkable in many workplaces and may create burdensome new standards for employers to follow.
Under the law passed last year, SB 553, virtually all California employers are required to establish, implement and maintain an effective workplace violence prevention plan and effective procedures to respond to “actual or potential” workplace violence emergencies.
The proposed additional requirements surpass those set out in state Labor Code as a result of SB 553. Here’s a look at some of the most significant changes.
Workplace controls
The proposed regulations list a number of acceptable procedures and rules that can be used to effectively reduce workplace violence hazards, including:
- Appropriate staffing levels,
- Hiring dedicated security personnel,
- Effective means to alert employees of the presence, location and nature of a security threat,
- Control of visitor entry, and
- Methods and procedures to prevent unauthorized firearms and weapons in the workplace.
Engineering controls
The proposal adds a number of suggestions for engineering controls that can help prevent violence in the workplace. These include:
- Electronic or mechanical access controls to employee-occupied areas,
- Weapon detectors (installed or handheld),
- Enclosed workstations with shatter-resistant glass,
- Deep service counters,
- Spaces configured to optimize employee access to exits, escape routes and alarms,
- Separate rooms or areas for high-risk persons,
- Locks on doors,
- Affixing furniture to the floor,
- Opaque glass windows (which can protect privacy, but allow employees to see where potential risks are),
- Improving lighting in dark areas, sight-aids, enhancing visibility and removing sight barriers,
- Video monitoring and recording, and
- Personal and workplace alarms.
The proposed rules also list situations or locations that have a higher risk of workplace violence. These include:
- Employees working alone or in locations isolated from other employees,
- Areas with poor illumination or blocked visibility (such as blind spots),
- Entries to places of employment where unauthorized access can occur,
- Work locations that lack effective escape routes,
- The presence of money or valuable items such as jewelry or luxury goods,
- Frequent or regular contact with the public,
- Working late at night or early morning, and
- Selling, distributing or providing alcohol, marijuana or pharmaceutical drugs.
The draft language would bar employers from requiring or encouraging employees to confront individuals suspected of theft or of engaging in violence in the workplace, except for dedicated security staff.
Finally, the proposed regulations outline steps employers can take when responding to and then investigating a case of workplace violence, post-incident:
- Provide immediate medical care or first aid to workers who have been injured in the incident,
- Identify employees involved in the incident,
- For employers with more than 25 employees, make available individual trauma counseling to those staff affected by the incident,
- Conduct a post-incident debriefing as soon as possible after the incident with employees, supervisors and security involved in the incident,
- Identify and evaluate workplace violence hazards that may have contributed to the incident,
- Identify and evaluate whether appropriate corrective measures developed under the firm’s workplace violence prevention plan were effectively implemented, and if any new or additional corrective measures should be made, and
- Solicit from employees involved in the incident their opinions regarding the cause of the incident, and whether any measures would have prevented it.
The takeaway
The proposed rules are just the first step. They still have to go through a public comment period and the Division of Occupational Safety and Health, which writes new regulations.
However, the rules have already received plenty of pushback from employers.
Karen Tynan, an attorney specializing in workplace safety and health for the Ogletree Deakins law firm, told the Cal-OSHA Reporter that there are potential pitfalls in the added provisions. The examples of engineering and work practice controls “may be helpful to employers, but certainly we don’t want to see inspectors demanding these examples in every workplace,” she said.
She also criticized the post-incident response procedures as “overbroad and overly burdensome. The demand for a post-incident investigation report will be incredibly difficult for even mid-sized employers or employers who do not regularly face workplace violence hazards.”
What Business Insurance Policies Cover Rioting, Looting
Protests and mass demonstrations that can sometimes descend into rioting and civil unrest are becoming more common not just in the U.S., but all over the world. Businesses can sometimes unwittingly become collateral damage from vandalism and looting.
It doesn’t have to be a retail establishment; office buildings and other commercial properties can also face looting and damage during civil unrest. For business owners whose properties are damaged or destroyed, the ordeal can be both unsettling and stressful as they wrestle with the specifics of filing insurance claims.
Fortunately, you don’t need special insurance policies to cover these events. Your basic commercial property policy and commercial auto (if you have business vehicles that are damaged) will usually suffice.
Here’s a look at what your policies may cover and how to prepare for filing a claim if your business is damaged during rioting or civil unrest.
Property damage
Standard commercial property policies cover damage to a business property caused by fire, explosion, riot or civil commotion, vandalism or malicious mischief. This would include coverage to the structure, as well as any inventory, fixtures and other contents. Business owner’s policies also include this risk.
Damage payouts would be subject to sublimits (specific or blanket) for inventory, fixtures and other items, as well as the policy deductible.
Commercial vehicle damage
For business-owned vehicles to be covered for damage for these types of events, you’ll want to ensure that you have purchased comprehensive coverage, which is an optional, but highly recommended part of your policy.
Comprehensive coverage may cover a vehicle if it is:
- Stolen,
- Damaged, or
- Destroyed.
One of the most common damages to vehicles during riots is broken windshields, which you can usually get covered with an optional glass coverage rider.
Business interruption coverage
Companies that are forced to close as a result of rioting and looting damage may have coverage for business interruption under a business property policy.
Business interruption insurance may cover lost income if a company is unable to operate after its premises were damaged during a riot or social unrest. Coverage may also apply if a business suffers a loss of income because of curfews or if authorities bar access to a property.
Coverage is typically triggered if there is direct physical damage to the premises.
Filing a claim
When filing a claim, read your policy or give us a call to determine how to best present it. It’s important to understand the policy’s limits and deductibles before spending time documenting losses that may not be covered.
If you are going to file a claim, document all damage. Keep receipts for all your inventory and fixtures.
In the event of a claim:
- Take photos of all damage.
- Contact your agent and file a claim immediately.
- Clean up to protect your building, but do not make major repairs until you talk to the insurance company.
- Keep receipts for any remediation work.
If you’re going to file a business interruption insurance claim, you will need:
- Pre-riot financial statements and income tax returns.
- Post-riot business records.
- Copies of current utility bills, employee wage and benefit statements, and other records showing continuing operating expenses.
- Receipts for building materials, a portable generator and other supplies needed for immediate repairs or remediation.
- Paid invoices from contractors, security personnel, media outlets and other service providers.
- Receipts for rental payments, if you move your business to a temporary location.
Note: Many policies require a 72-hour waiting period before a policyholder can begin making a business interruption claim. That’s because the first three days of business shutdown, access constraints or limited hours of operation because of a civil authority action, are often excluded from coverage.
There may also be a limit to the claim period. A standard limit is up to three weeks of losses.
More Businesses Sued Over Disabled Website Access
Businesses with a web presence, particularly those that are consumer-facing, are increasingly being sued over website accessibility issues that prevent disabled individuals from using a website.
While the number of such cases has been growing, 2,281 website accessibility lawsuits were filed in 2023, down from 2,387 the prior year and 2,352 in 2021, according to a report by Accessibility.com, a firm that helps businesses make their websites useable for certain disabled individuals.
The drop in cases actually filed is due to more organizations settling with law firms without going to court, in light of the fact that there was an 18% year-on-year increase in demand notices in 2023, the report concludes.
For businesses with customer-facing websites, this is a new risk that must be taken seriously as people can access the websites from anywhere in the country. Just because a business is located in say, Kentucky, a person in New York may sue in their local jurisdiction over website access issues.
Even if a business succeeds in fighting one of these cases, the litigation costs can be substantial.
What is website accessibility?
Website accessibility refers to the extent to which a site can be used by individuals with disabilities. This can include people who are blind or have low vision, those who are deaf or hard of hearing, and people with mobility impairments, cognitive disabilities or other disabilities.
It involves designing your website so that its content is available to and functional for everyone, including those who might use assistive technologies like screen readers, voice recognition software, or specialized input devices.
What’s happening?
The Americans with Disabilities Act allows individuals with disabilities to bring lawsuits against businesses directly. A plaintiff can seek injunctive relief, such as asking for a court order requiring the website to be changed as well as attorneys’ fees or costs. However, the ADA does not permit the recovery of monetary damages in these cases.
That said, many states, including New York and California, have enacted state laws allowing individuals to recover monetary damages for disability discrimination. Courts in both states have ruled that websites are places of public accommodation akin to establishments with physical locations, and, thus, are subject to the ADA.
As a result, more than 85% of website accessibility lawsuits are filed in those two states, according to the Accessibility.com report.
There are indications that filing these types of lawsuits has become a moneymaker for a few law firms and individuals. The report found that:
- New York had nearly 73% of all the cases filed nationwide, followed by California and Illinois.
- Over 69% of all website accessibility lawsuits were filed by five law firms out of New York and California.
- Almost 16% of website accessibility lawsuits in 2023 were filed by five plaintiffs. One of them filed more than 105 lawsuits that year after filing 108 in 2022. The report found that four other individuals filed between 52 and 78 cases apiece in 2023.
What should businesses do?
Most of these lawsuits cite the “Web Content Accessibility Guidelines,” published by the World Wide Web Consortium. While these guidelines are advisory only, they have become the standard to follow when making websites accessible to individuals with disabilities.
Courts have accepted these guidelines as the applicable standard for ADA website accessibility compliance. Many of these cases are settled with the condition that the website become compliant with WCAG, which is focused on making websites perceivable, operable, understandable and robust.
There are widgets that can be installed on websites to ensure they comply with the WCAG, but even so, 933 lawsuits filed in 2023 were against businesses that had installed such widgets on their websites.
Experts recommend:
- Regularly checking your website and digital content to ensure it is accessible to individuals with disabilities.
- Ensuring that your website complies with the latest WCAG guidelines and includes a general statement regarding accessibility and a clear indication of how to contact your company if an issue with accessibility arises.
- If necessary, hire an outside vendor that can bring your website into compliance with the WCAG guidelines.
- If you receive an ADA demand letter or complaint, you should consult with attorneys who are experienced in these types of cases.
EEOC, OSHA Retaliation Claims Surge
Over the past several years, employers have seen a significant uptick in retaliation and whistleblower claims filed by employees and investigated by federal agencies.
Often these claims are part of another complaint, either concerning workplace discrimination or harassment issues and filed with the Equal Employment Opportunity Commission, or concerning workplace safety issues, which are filed with Fed-OSHA.
In 2023, the EEOC saw a record number of retaliation complaints — 46,047, up 20% from 2022. During that same period the number of cases that were resolved jumped 28% to 43,685 from 34,180.
Monetary benefit awards and settlements leapt nearly 30% to $283 million in 2023, from $220 million in 2022.
Importantly, the number of complaints filed with the EEOC that include retaliation increased to 50% of the total in 2022, from 30% in 2010.
At OSHA, the number of whistleblower complaints filed with the agency increased significantly in 2023, with the vast majority of those complaints — about seven in 10 — filed under the OSHA Act section on “retaliation based on protected safety acts,” like harassment or discrimination.
OSHA has put an emphasis on protecting workers who suffer retaliatory treatment after bringing up workplace safety issues with management. The number of retaliation case determinations by OSHA soared nearly 30% between fiscal year 2023 and FY2022.
What is retaliation?
Retaliation means any adverse action that management or supervisors take against an employee because they complained about harassment or discrimination or workplace safety issues. Any negative action that would deter a reasonable worker in the same situation from making a complaint also qualifies as retaliation.
Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish a worker for giving a statement to a government agency that is looking into a discrimination claim.
Employment law experts recommend that employers do the following:
Set clear and unambiguous policies
- Your company policy should clearly state that retaliation is not permitted.
- The policy should describe the parameters of inappropriate conduct as well as you can define them.
- Put the policy in writing.
- Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
- Have staff sign an acknowledgment of receipt of your policy.
Investigate complaints promptly
- All complaints should be taken seriously and investigated without delay.
- Anyone who participates in an investigation is protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
- Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.
Train managers and supervisors
Train managers and supervisors and ensure they understand your policies.
Make sure they understand who is protected from retaliation (participants, complainants — and even persons related to the complainant in some cases).
They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.
Further protection
Besides instituting policies and training managers and supervisors about avoiding retaliatory actions, it is important to have proper insurance coverage in place: employment practices liability insurance.
This insurance may cover the cost of employee-initiated lawsuits like discrimination, harassment and retaliation complaints, but it will not cover illegal acts. Covered costs include legal fees, as well as any settlements or judgments rendered against your business.
Cal/OSHA Proposed Rules Would Impose Large Penalties for ‘Egregious,’ ‘Enterprise-Wide’ Violations
Cal/OSHA is working on new rules that would crack down and step up enforcement and penalties against California employers that commit “egregious” and “enterprise-wide” workplace safety violations.
The forthcoming rules would impose substantial penalties on companies that have shown a disregard towards California workplace safety regulations and the wellbeing of their employees. Employers that are cited for egregious violations could be fined up to $158,000 “per instance,” meaning it can be applied for each employee exposed to the violation. And there’s more.
Employers that are cited for egregious violations could be fined up to $158,000 “per instance,” meaning it can be applied for each employee exposed to the violation.
As well, businesses with multiple locations will have to be especially mindful of complying with Cal/OSHA regulations to ensure they are not snared for the same violations at two or more locations.
The new rules implement a 2021 law, SB 606, and will bring Cal/OSHA’s rules in line with Fed-OSHA’s as federal law requires that state-run OSHA enforcement programs to be “at least as effective” as the federal program.
Here’s what’s on tap:
Enterprise-wide violation
Under the proposed rules, a violation is enterprise-wide if an employer has multiple worksites and either of the following is true:
- The employer has a written policy or procedure that violates occupational safety and health regulations; or
- The Division of Occupational Safety and Health has evidence of a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.
The proposed penalty for enterprise-wide violations is multiplied by the number of worksites covered at inspection, up to a maximum of $158,727 per exposed worker, and will be adjusted each year for inflation.
If an employer fails to abate violations noted by a Cal/OSHA inspector at any worksite covered by the citation in a timely manner, a separate “failure to abate” penalty of up to $15,000 may be assessed for each instance.
Egregious violation
The proposed rules define an egregious violation as a willful violation where the employer has had a previous egregious violation in the past five years. One or more of the following apply:
- The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
- The employer has a history of one or more serious, repeat or willful violations or more than 20 general or regulatory violations per 100 employees.
- The employer intentionally disregarded its health and safety responsibilities, such as by failing to maintain an effective Injury and Illness Program, ignoring safety and health hazards, or refusing to comply with the Cal/OSHA Act.
- The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to comply with occupational safety and health standards.
- Within the five years preceding a citation for an egregious violation, the employer has committed more than five violations of any Title 8 standard that has become finalized.
- The violations resulted in worker fatalities, a worksite catastrophe, or five or more injuries or illnesses. Catastrophe is defined as inpatient hospitalization of three or more workers from a workplace hazard.
- Within the 12 months immediately preceding the underlying violation, 10% of all employees at the cited worksite sustained workplace injuries or illnesses.
According to the Cal-OSHA Reporter newsletter, it’s expected that the proposed maximum penalty for egregious violations will be $158,727, adjusted each year according to the consumer price index. Importantly, each employee that is exposed to an egregious violation would be considered a separate violation. Since the penalty can be assessed on a per-instance basis, it could quickly spiral for some employers.
The takeaway
The proposed regulations pose the largest risk for companies with multiple locations.
Employers should double down on their workplace safety efforts and ensure that there is buy-in to the program from top management down to supervisors and line workers at all locations.