Tit for Tat: OSHA Issues New Guidance on Its Anti-Retaliation Regulations

By Tami Hannon

It may surprise you to know that until recently, no rule required an employer to have a procedure in place for an employee to report a workplace illness or injury. No rule expressly protected employees who reported workplace illnesses or injuries from retaliation. The Occupational Health and Safety Administration remedied this issue with its recent regulations which went into effect on December 1, 2016. These regulations expressly require an employer to establish a process for reporting a workplace illness or injury and expressly protect workers for making such a report. In response to concerns that employers were using “safety incentive” programs to effectively discourage the reporting of workplace accidents or illnesses, OSHA also regulated those programs.

On January 13, 2017, OSHA issued guidance to assist businesses in crafting their anti-retaliation policies. The Guidance looks at “recommended” anti-retaliation programs as containing five elements: (1) management commitment, (2) a compliance concern response system, (3) an anti-retaliation response system, (4) anti-retaliation training and (5) program oversight. The complete “Recommended Practices for Anti-Retaliation Programs” can be found here.

Element 1 – Management Commitment

In Element 1, OSHA stresses the importance of having upper management involved in creating, assessing, and monitoring the employer’s anti-retaliation program. OSHA recommends that upper management ensure that a system is created, implemented, and followed for employees to report hazards, compliance concerns, or retaliation. Upper management is also to ensure that the identity of reporting workers remains confidential. One manager should be designated and be accountable for the reporting program’s administration and enforcement.

OSHA also recommends that upper management speak with workers or worker representatives about creating and improving management awareness as well as implementing the chosen system. Management should create a system to assess and evaluate employees’ willingness to report compliance concerns and the success of the anti-retaliation program.

Element 2 – Compliance Concern Response System

This element offers guidance on creating the reporting program. OSHA recommends having multiple reporting avenues, such as helplines, email, or in person to a designated individual. You should also create a process for informal reporting to allow for potential issues to be resolved before they become problems. Any avenues put into place should protect the confidentiality or anonymity of the individual making the report or complaint.

Employees should be informed of how to make a report under your policy, as well as externally to OSHA. OSHA also recommends advising employees of their right to choose whether to file an internal report or to report directly to OSHA. These instructions should be clear and readily available to the employees. Complaints or reports received under your policy should be investigated by an independent investigator, who can be either an employee who is not directly involved in the situation or an outside third-party investigator.

Any safety incentive programs you offer must be structured so that they do not discourage employees from reporting injuries, illnesses, or compliance issues. For example, a program that rewards employees for being accident free during a set period would likely be invalid, as would compensation structures that reward lower injury rates. However, positive reinforcement that rewards an employee for following set safety requirements would be permissible.

Element 3 – System for Receiving and Responding to Reports of Retaliation (“Anti-Retaliation Response System”)

This element focuses on how you respond to a report or complaint of retaliation. All complaints should be investigated, and employee confidentiality maintained as much as possible. Protections should be in place to guard against potential conflicts of interest between an investigator and the employee or supervisor. When possible, OSHA recommends using an independent, third-party investigator. If your legal counsel is used to investigate, counsel should inform the employee that counsel represents your interests and any attorney-client privilege is limited to you.

During the investigation, the employee should be advised of the right to file a complaint with OSHA regardless of the internal investigation. The employee should also be advised that the deadline to file with OSHA is not delayed due to the internal investigation. Both the employee and a management representative should be kept informed of progress during the course of the investigation.

Element 4 – Anti-Retaliation Training

OSHA recommends that front-line supervisors and lower-level management receive anti-retaliation training. That training should review the relevant laws and regulations, your commitment to addressing these concerns, the employees’ rights and obligations to report potential hazards and violations, the employees’ statutory right to be protected from retaliation for making a report, the procedures you put into place to address retaliation concerns, and what activities may violate that policy or constitute retaliation. The training should provide supervisors and managers with skills to resolve workplace conflict and retaliation, information on how to respond to a retaliation complaint, and how to recognize when an employee is making a complaint of retaliation.  They should also be aware of the consequences to them if they fail to follow the employer’s policies and practices for anti-retaliation.

Element 5 – Program Oversight

Element 5 is the “reflection and review” element. This element involves ongoing monitoring of the program and analysis to ensure the program is functioning as intended. OSHA recommends conducting an independent, formal audit to evaluate the anti-retaliation program.

It is unclear whether, or in what form, OSHA’s new anti-retaliation regulations will survive. A lawsuit is currently pending in a federal court in Oklahoma challenging the regulations as being beyond OSHA’s rule-making power. A similar lawsuit previously filed in Texas was unsuccessful. It is anticipated that the new administration will focus on reducing regulations and may seek to repeal the anti-retaliation regulations. For the time being, employers should be familiar with and prepared to respond to these new requirements.

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Qualified Immunity for Law Enforcement Reaffirmed: Supreme Court Issues Unanimous Decision in White v. Pauly

Law enforcement officers are generally immune from liability and may only be held civilly liable under federal law if, (1) the officers violate an individual’s constitutional rights and (2) that constitutional right was clearly established at the time of the violation.  The United States Supreme Court recently issued an opinion discussing the second prong of this analysis.  The Supreme Court, in White v. Pauly, 580 U.S. ______ (2017), reminded us that the second prong of the analysis cannot be satisfied by relying upon general statements of law, and that a court cannot deny an officer qualified immunity unless it can cite to a case where an officer acting under similar circumstances as the officer was found to have violated the Fourth Amendment.

The White case involved the use of deadly force. In White, officers were responding to a call of suspected driving under the influence.  The suspect had left the scene and the officers responded to the address associated with the vehicle’s license plates.  For the purposes of summary judgment it was assumed that the other officers had failed to sufficiently identify themselves as police officers and that the plaintiffs believed that their residence was under attack.   Specifically, in response to the plaintiffs’ questions as to who was outside, the officers laughed and said “You (expletive), we’ve got you surrounded, come out or we’re coming in.”

Officer White arrived on the scene several minutes after his fellow officers.  As Officer White arrived he heard the two men state that they had guns.  Officer White took cover behind a stone wall.  The suspect opened the door and fired two shotguns blasts while screaming loudly.  The other man, the driver’s brother, opened the front window and pointed a handgun in the direction of Officer White.  Another officer fired at the brother, but missed.  Several seconds later Officer White shot and killed the brother.

The district court and the court of appeals denied summary judgment to all officers, including Officer White.  The Supreme Court vacated this decision and held that, on the record described by the Court of Appeals, Officer White did not violate clearly established law when he utilized deadly force.  The Supreme Court held that clearly established law does not prohibit a reasonable officer who arrives later to an ongoing police action in circumstances like this from assuming that proper procedure, such as officer identification, have already been followed.  The Supreme Court noted that no settled Fourth Amendment principle requires that late-arriving officer to second-guess the earlier steps already taken by his or her fellow officers.

he Supreme Court remanded the case to the district court, but also included a requirement that the court consider an alternative argument that Officer White had arrived early enough to witness the other officers’ deficient identification and should have known that corrective action was necessary before using deadly force.  The Supreme Court did not offer any opinion regarding the constitutionality of the other officers’ conduct.

This case is a good case for law enforcement, as it once again reinforces the concept of qualified immunity and the provision of immunity to law enforcement when they are acting in gray areas.  However, the case also underscores the importance of utilizing common sense and basic police protocols, such as an officer identifying him or herself when approaching a suspect, and treating suspects with courtesy.  While hindsight, of course, is always 20/20, the entire situation in White may have been avoided had the officers approached the plaintiffs, identified themselves as police officers, and discussed the underlying misdemeanor traffic offense, rather than creeping in the bushes and yelling expletives.


Cara Wright

Cara M. Wright
440.287.8321
cwright@mrrlaw.com

 

Ohio’s Dram Shop Act Not the Exclusive Remedy

Tom MazanecMary Beth KlemencicBy Tom Mazanec and Mary Beth Klemencic

Ohio’s Dram Shop Act was found not to be the exclusive remedy for a third party to hold liquor permit holders liable for the actions of an intoxicated patron in a recent ruling in Sharon Snyder, et al. v. Julio Vargas, et al., Case No. CV-15-839575 in the Court of Common Pleas, Cuyahoga County, Ohio. The judge ordered Secrets Gentlemen’s Club to pay $8 million to the family of a woman killed in a motor vehicle accident when an intoxicated patron of the club drove the wrong way on the highway. The court held in a notable decision that the Plaintiffs’ common law negligence claims were sufficiently distinct, separate, and independent from the statutory cause of action premised on the sale of alcohol. The court did clarify that its decision was based on case specific facts and attendant circumstances, particularly that the liquor permit holder admitted that it had an obligation or duty to prevent known intoxicated patrons from driving and an obligation or duty to call or involve police to prevent known intoxicated patrons from driving or, at the minimum, provide them with alternate transportation.

In Ohio, there is no common law duty to prevent a known intoxicated patron from driving a motor vehicle, no duty to call the police on a known intoxicated patron who is going to drive, and no duty to find alternate transportation for a known intoxicated patron.

In Snyder, the intoxicated patron pled “no contest” to aggravated vehicular homicide and assault charges, was found guilty, and sentenced to 15 years in prison. The driver’s insurance agreed to settle with the family paying $37,000 and Gigi’s lounge, a strip club he had been to earlier in the evening, also agreed to settle with the family for $1 million.

Julio Vargas starting drinking at home around 5:00-5:30 p.m. He then bought beer and a pint of Hennessy at the liquor store and drank and snorted cocaine in the store’s parking lot, after which he drove to an adult entertainment bar known as Fox’s Den, where he drank more. Vargas next drove to Gigi’s Lounge around 7:20 p.m., where he admits to being impaired and noticeably intoxicated by the time he got there. He drank more and admittedly was so intoxicated he blacked out and has no memory of the rest of the night.

Gigi’s owner, staff, and a customer testified at depositions that Vargas was acting weird, non-responsive, aggressive, hard to understand, and irrational. Gigi’s bartender testified she was so concerned about his behavior she armed herself with a gun. According to Gigi’s owner, Vargas inappropriately shoved her, leaving a bruise, and was behaving aggressively. She threw him out around 8:30 p.m. and followed him into the parking lot to make sure he got in his vehicle and left.

After his ejection from Gigi’s, Vargas drove to Secrets Gentlemen’s Club where it is disputed as to how many drinks Vargas consumed while at Secrets. Secrets claims they only served him one beer in the two hours and forty-five minutes he was there. Credit card receipts show he purchased two drinks. Evidence shows he withdrew $200 in cash from an on premises ATM. The club took no steps to preserve any other receipts or documents to reflect other sales and Cleveland police testified Secrets was not cooperative with their investigation.

At deposition, Secrets’ general manager/minority owner (“GM”) acknowledged Vargas inappropriately touched one of the dancers, assaulting her, thus violating Ohio law and committing a crime. The GM further stated that around 11:30 p.m., he spent 15-20 minutes having direct face-to-face contact with Vargas. Three separate experts opined that Vargas would have been noticeably intoxicated throughout his time at Secrets.

Vargas was escorted out twice and video depicts him confused and initially unable to locate his vehicle before finding it and driving away. Minutes later he entered the highway going the wrong way and the fatal crash occurred around 11:45 p.m.

In deposition the GM acknowledged that Secrets has an obligation or duty to prevent known intoxicated patrons from driving and a duty to call police to make sure extremely intoxicated patrons do not drive, or else arrange for transportation to take them home. However, he did not call the police to intervene with Vargas, “because they take forever.”  But, Secrets’ bouncer testified that there was a uniformed, off-duty officer on site, yet no one asked the officer for assistance handling Vargas.

The court awarded total damages in an amount in excess of $24 million, apportioning liability as one-third to Vargas, one-third to Gigi’s Lounge, and one-third to Secrets. Each liable for a little more than $8 million.

The trial court found that plaintiffs’ common law negligence claims, (1) failing to prevent a known intoxicated patron from driving and, (2) failing to inform the on-site police officer of Vargas’ extremely intoxicated condition, along with his assault of a club dancer and his unauthorized use of a credit card, were sufficiently distinct, separate, and independent from Ohio’s dram shop statute and that plaintiffs’ common law negligence claims were based on  case-specific facts and attendant circumstances relating to Secrets’ negligence in failing to fulfill its admitted duties of preventing a known intoxicated patron from driving, or notifying police, or providing alternate transportation.

To establish actionable negligence one must show the existence of a duty, a breach of that duty, and injury resulting proximately from that breach. In general, the existence of a duty depends largely on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury would likely result from the performance or nonperformance of an act.

The court concluded that Secrets admitted it had an obligation or duty to prevent known intoxicated patrons from driving, a duty to call or involve police when a known intoxicated patron is driving or provide the intoxicated person with other transportation. Based on these unique and case specific facts and attendant circumstances, the trial court held that Secrets breached its admitted duty to prevent a known intoxicated patron from driving, as well as breaching its duty to use reasonable care to prevent foreseeable harm to others under the “attendant circumstances as those involved in this unique case.”  Secrets not only did nothing to fulfill its duties, it ensured that Vargas would drive away in his intoxicated state. Thus, it was foreseeable to Secrets, or anyone under these circumstances, that serious injury was likely to occur. Secrets actions and omissions had nothing to do with selling or serving alcohol, but were based on the unique and case-specific facts and circumstances involved, i.e. the admission to a duty not legally imposed by law.

The court took notice of the few other Ohio courts that have permitted common law negligence actions to be maintained against liquor permit holders for the actions of intoxicated patrons and noted that the facts and circumstance in this matter were even more egregious than those involved in the other cases. However, in the other cases the injured party was a patron/business invitee of the liquor permit holder and the liability was found to arise essentially under a premises liability claim. In the matter herein, the injured party was not a business invitee, but an innocent third party whose remedies against a liquor permit holder are laid out under Ohio’s dram shop statute.

In closing, the trial court remarked that Secrets’ negligence was separate, distinct, and independent from any statutory claims involving or arising from its sale or service of alcohol. Unlike a situation where a drunk patron slips out undetected, Secrets’ management failed not only to take any action to fulfill its admitted duty to prevent a known intoxicated patron from driving so as to prevent foreseeable injuries to other motorists, but its actions ensured that Vargas would drive away.

Coverage Ramifications – General Liability Carriers Beware

To the extent that the duties admitted to are outside of the dram shop law, then the argument will be made that the general liability carrier will have a duty to defend and indemnify on these allegations. Thus, rather than simply denying coverage, a reasonably prudent general liability carrier will first make sure that the dram shop carrier is defending the entire case. Defense counsel has an obligation to defend all counts of the complaint and not just those allegations that may be covered by the carrier that hired him. However, a finding by a court or jury that the common law negligence duties have been violated might well trigger coverage and payment by the general liability carrier. Thus, general liability carriers must closely examine claims and lawsuits that may have common law negligence components to them as opposed to simply assuming the dram shop carrier will take care of everything.

Experience Counts

We are experienced dram shop attorneys and are well prepared for these types of allegations. Our witness and client preparation includes educating them regarding Ohio law, explaining exactly what their duties are under the dram shop law, and making sure that they do not admit to any duties they are not legally obligated to perform. In over 30 years of handling these types of cases, a plaintiff attorney has never been successful in getting these admissions from our properly prepared clients and witnesses.

Thomas S. Mazanec and the firm of Mazanec, Raskin & Ryder Co., L.P.A. (MRR) have handled liquor liability cases for more than 30 years and have tried numerous matters to verdict. MRR attorneys have defended more businesses and event organizers in liquor liability cases than any other firm in Ohio. Our representation of the liquor permit holder before the Ohio Supreme Court in Smith v. The 100th Inning, Inc., radically changed the course of the dram shop statute in Ohio by denying an intoxicated patron the right to sue the permit holder based on the commonsense argument that responsibility for one’s voluntary liquor consumption should be one’s own.

Our attorneys work across the state with bars, restaurants, taverns, individuals, and temporary liquor permit holders as well as the insurance carriers providing coverage for those clients. When litigation is pursued, we engage in tenacious investigations and put on an aggressive defense for our clients.

For additional information or questions about the ruling in Snyder, please contact Thomas S. Mazanec at
440.287.8297 / tmazanec@mrrlaw.com or Mary Beth Klemencic at 440.424.0018 / mbk@mrrlaw.com.

UPDATE: Ohio Supreme Court – Abolition of “Proximate Cause Rule” in High Speed Pursuits

We previously reported on a case making its way through our court system that determined police officer liability in high speed pursuits (Click HERE to read our prior blog post). On December 27, 2016, the Ohio Supreme Court issued its ruling concerning potential officer liability. That ruling held that a police officer’s liability is determined by reference to the immunity standards in Ohio Revised Code Chapter 2744, not whether the officer’s conduct was extreme or outrageous. Argabrite v. Neer, 2016-Ohio-8374.

The case before the Court involved the pursuit of a burglary suspect, who, while being pursued by officers, swerved into traffic and crashed headfirst into an innocent bystander. The bystander sued the officers involved for personal injuries resulting from the crash. The trial court dismissed her claim, finding that the officers’ conduct did not cause her injuries. The court of appeals affirmed the trial court’s decision.

Both the trial court and the court of appeals relied on the “proximate cause rule,” which says that officers are only liable for an innocent bystander’s injuries suffered as a result of a pursuit if the officers’ conduct was extreme or outrageous.  The bystander appealed to the Ohio Supreme Court, claiming that the “proximate cause rule” effectively provided immunity greater than that provided by R.C. 2744, which provides immunity so long as the officers do not act wantonly, maliciously, in bad faith, or recklessly.

Unfortunately, the Ohio Supreme Court agreed and abolished the proximate cause rule as being contrary to the immunity provided in R.C. 2744. Specifically, the Court held that the “proximate cause rule” shielded an officer from liability unless the officer acted in an extreme or outrageous manner, thereby effectively and improperly extending immunity to an officer who acts wantonly or recklessly even though the officer is not immune from that conduct under R.C. 2744. The Court further stated that if the legislature wanted to expand the limits of the immunity that applies to officers who pursue fleeing suspects, it could have created this standard via statute, but the courts may not.

Notwithstanding the abolishment of the proximate cause rule, the Court found the officers to be immune under R.C. 2744 because their conduct was not wanton, malicious, in bad faith, or reckless.  In finding the officers were immune, the Court considered whether the officers knowingly violated policy and whether the officers knew that their conduct would in all probability result in injury.  The Court found that the officers unknowingly violated departmental policy, but that there was no evidence that they knew their conduct would in all probability result in injury.  In so holding, the Court relied on the fact that the officers engaged in the pursuit at a distance and at reasonable speed, that the weather conditions were light and sunny, that the lead officers called out street names over the radio so that other officers would know their location and the direction in which they were heading, and that the lead officers used their overhead lights and sirens throughout the pursuit.

In conclusion, while the Ohio Supreme Court’s decision in Argabrite make it more difficult for officers to avoid liability in high speed pursuits, the Court did give guidance as to how to best avoid liability. Specifically, if you are aware of a policy, ensure it is followed. Additionally, if you believe that your conduct will probably result in another’s injury, cease the pursuit. Finally, make sure you pursue at a reasonable distance and at a reasonable speed, consider weather conditions in determining whether to initiate or continue a pursuit, and ensure you are using your lights and sirens.

It is now more important than ever for each and every police department throughout Ohio to thoroughly review its policies regarding the pursuit of suspects and for all policies to incorporate the standards laid out by the Court so as to decrease their officers’ risk of liability when pursuing a fleeing suspect.

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