Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Attention: Have you taken the HR4U mini-Human Resources audit, yet?

 

Security Firm Must Pay $89.7 Million in Rest Break Class Action

ABM Security Services sought and secured a rest break exemption from the California Division of Labor Standards Enforcement for its single guard sites from Dec. 27, 2006, to Dec. 26, 2007.
The firm’s guards operate in assignments ranging from small, one-officer night shifts to large commercial sites with multiple officers—from the security officer sitting alone behind a desk to officers driving a car, patrolling a mall or other security work.

The security firm subsequently made a conscious business decision not to seek the exemption from the rest break requirement and it also chose not to have a roving guard or guards filling in for those on their breaks.

But the firm’s requirement that guards remain on duty while on their breaks did not meet California’s requirement to provide uninterrupted, 10-minute rest periods to nonexempt employees who work shifts exceeding four hours or a major fraction thereof (three and a half hours or more), according to the court.

ABM required every guard on duty to have their pagers or radios on, even though in California workers must be relieved of all duties during rest and meal breaks. ABM argued that if they were called back to their posts because of a crisis during breaks, they were allowed to return to their breaks later.

The key, though, is employer control. Even if the guards sat around and did nothing, if they remained under the employer’s control, they were on duty and the breaks didn’t count as uninterrupted.

Lesson:
California’s rest and meal break requirements are straightforward. Give employees the breaks they are entitled to or else risk finding yourself in court.

 

Telework and Workers’ Compensation

Telework has grown steadily over the past several years. This type of flexible arrangement—which authorizes employees to perform work away from their regular place of employment, most often from their homes—has become common for office workers. The latest estimates place the  telework population at nearly 3 million people.

 

But both employers and employees often overlook workplace safety practices, including the use of proper ergonomics, during telework arrangements, possibly increasing the risk of injury or health problems to employees and increasing workers’ compensation costs.

 

There are many benefits to telework, such as improved recruitment, productivity and work/life balance. Telework also can reduce overhead and accommodation costs, as well as stress levels and commute time. But risks from not paying attention to ergonomics are very real.

 

The Telework Learning Center in Fairfax, Va., collected data on the health of teleworkers from 2003 to 2006 and found ergonomics problems to be a primary concern. Among teleworkers who participated in the study, 38 percent reported work-related discomfort, soreness or pain, most commonly in the back, wrists, neck and shoulders.

 

A worker working from home who complains of wrist pain or neck or shoulder pain because of working at a computer is no different than a worker in an office.

In most states, an employer is going to be liable for an employee working from home or remotely. Work is becoming a 24/7 exposure. Employers have to come up with ways to manage the potential liabilities.

 

OSHA does not conduct home office inspections, nor does the agency require employers to do so. OSHA does, however, hold employers liable for hazards caused by equipment, materials or work processes provided or required by the employer. Employers that record work-related injuries and illnesses must maintain such a record for teleworkers as well.

Because the majority of teleworkers predominantly are engaged in office work, safety concerns they face often include standard office hazards: ergonomics problems; fires; slips, trips and falls; and air quality. However, because these workplaces also are personal homes, workers may become lax about mitigating these hazards.

 

Best Practices: Have a comprehensive telework policy including forms and safety checklists that all teleworkers must sign.

 

False Sexual Harassment Results in Termination

Richard Joaquin was a Los Angeles Police Department officer. He complained of sexual harassment by Sergeant James Sands.

Sands then made an counter complaint against Joaquin, alleging that Joaquin made a false complaint in order to relieve him from a disciplinary action by Sands relating to leaving his shift early. After a review board hearing, the police department terminated Joaquin for making a false accusation.

In the course of the lawsuit, Joaquin did demonstrated that he reported sexual harassment. The police department; however determined that he fabricated the sexual harassment complaint against Sands.

The question, then, was one of intent. Did the police department intend to terminate Joaquin in retaliation for his harassment complaint (which would be illegal), or did it terminate him because he made a false complaint?

The court determined that where an employee makes a false sexual harassment complaint, an employer who terminates that employee on account of the false complaint does not engage in unlawful retaliation and Joaquin’s termination was upheld.