Reference Page – Law Cases Contents Contents Safety and Human Resource Law for the Safety Professional Occupational Safety and Health Guide Series Series Editor: Thomas D. Schneid, Eastern Kentucky University, Richmond, Kentucky The aim of this series is to develop books to address the myriad of unique topics which are encompassed within the areas of responsibility of a safety professional. The scope of the series is broad, addressing traditional occupational safety and health topics as well as emerging and cor- relating topic areas, such as ergonomics, security, labor, school safety, employment, workplace violence, and other topics. Safety professionals often assume a broad spectrum of responsibilities, depending on the organization, which go beyond the traditional safety professional’ s role. This series should become the “ one stop” source for safety professionals to locate texts on traditional as well as emerging and correlating subjects related to the safety and health function. Safety Law Legal Aspects in Occupational Safety and Health Thomas D. Schneid Physical Hazards of the Workplace Barry Spurlock Loss Prevention and Safety Control Terms and Definitions Dennis P. Nolan Discrimination Law Issues for the Safety Professional Thomas D. Schneid Labor and Employment Issues for the Safety Professional Thomas D. Schneid The Comprehensive Handbook of School Safety Edited by E. Scott Dunlap Creative Safety Solutions Thomas D. Schneid Physical Security and Safety A Field Guide for the Practitioner Edited by Truett A. Ricks, Bobby E. Ricks, and Jeffrey Dingle Workplace Safety and Health Assessing Current Practices and Promoting Change in the Profession Thomas D. Schneid For more information about this series, please visit: https ://ww w.crc press .com/ Occup ation al-Sa fety-- Healt h-Gui de-Se ries/ book- serie s/CRC OCCSH GS Safety and Human Resource Law for the Safety Professional Thomas D. Schneid With Contributions by Shelby L. Schneid CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 2019 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Printed on acid-free paper International Standard Book Number-13: 978-1-138-19621-6 (Hardback) This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been made to publish reliable data and information, but the author and publisher cannot assume responsibility for the validity of all materials or the consequences of their use. The authors and publishers have attempted to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged, please write and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmit- ted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, with- out written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www.copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Names: Schneid, Thomas D., author. Title: Safety and human resource law for the safety professional / authored by Thomas D. Schneid. Description: Boca Raton : Taylor & Francis, 2019. | Series: Occupational safety and health guide series Identifiers: LCCN 2018055113| ISBN 9781138196216 (hardback : alk. paper) | ISBN 9781315302713 (e-book) Subjects: LCSH: Industrial safety--Law and legislation--United States. Classification: LCC KF3570 .S363 2019 | DDC 344.7304/65--dc23 LC record available at https://lccn.loc.gov/2018055113 Visit the Taylor & Francis Website at http://www.taylorandfrancis.com and the CRC Press Website at http://www.crcpress.com Contents Foreword ..................................................................................................................vii Preface.......................................................................................................................ix Acknowledgments ..................................................................................................xiii Author ......................................................................................................................xv Chapter 1 The Safety Function and the Law ........................................................1 Chapter 2 Talent Acquisition and Education: Interviewing, Hiring, and Training ...........................................................................27 Chapter 3 Job Descriptions: The Key to Hiring Success ...................................53 Chapter 4 Employee Motivation and Progressive Discipline .............................73 Chapter 5 Safety and Employee Behavioral Issues in the Workplace ................85 Chapter 6 Preparing for OSHA: Standards, Violations, and Actions .................95 Chapter 7 Violations and Appeal: The Occupational Safety and Health Review Commission .............................................................113 Chapter 8 OSHA Enforcement and Whistleblower Protections .......................153 Chapter 9 Anti-Discrimination Laws Impacting Safety and Health ................163 Chapter 10 Family and Medical Leave Act ........................................................183 Chapter 11 The Americans with Disabilities Act and Safety .............................205 Chapter 12 Federal Wage and Hour Laws ..........................................................229 v vi Contents Chapter 13 National Labor Relations Act and Unfair Labor Practices ..............249 Chapter 14 State Workers’ Compensation Laws .................................................265 Chapter 15 e-Workplace: Privacy Laws, Cybersecurity, and Social Media .......275 Chapter 16 Retirement and Welfare Laws ..........................................................295 Chapter 17 Emerging Issues: Guns, Grass, Drones, and the Safety Profession .........................................................................................315 Reference Page – Law Cases ...............................................................................327 Index ......................................................................................................................329 Foreword In today’s highly specialized society where we educate our safety professionals on all of the fundamentals of safety compliance, auditing, safety metrics, machine guarding, accident investigations, and chemical process safety (to name a few), we now have a very timely book from Dr. Thomas D. Schneid that addresses many of those issues that may, at first blush, appear merely ancillary to the function of the average safety professional. However, these are truly key areas of knowledge that all safety professionals need to be aware of, be able to recognize, and deal with to become a more well- rounded safety professional. To give readers just one example of how this may apply, consider the following scenario I had a few years ago, when I was brought in as the outside legal labor and employment counsel to a manufacturing company that was starting to hear rumors of a union trying to organize its non-union workforce. We scheduled a meeting with upper management to begin training them on how to deal with union organizing, the dos and don’ts of when a union comes calling on your employees. In fact, what happened that first day I showed up was that the company received a letter from the union, asking them if they wanted to voluntarily recognize the union because they claimed to already have a majority of employees who had signed union authoriza- tion cards. A few days later, one of the lead employees of the organizing campaign stopped the company president in the plant and told him that the company’s new safety manager, who had been hired only a few weeks before, was going around the plant asking employees as to which employees were key players in the union election and why they wanted a union. Of course, he thought he was being proactive for the company. In fact, he was violating the National Labor Relations Act (NLRA), which prohibits employers from coercively questioning employees about their activities, support, or sympathies for a union. It also prohibits polling employees about their support for a union. This is a violation of the employees’ Section 7 rights and is an unfair labor practice under Section 8(a)(1) of the Act. This book also deals with those other key issues such as the FMLA, ADA, and Workers’ Compensation that has a huge impact on dealing with workers and injured workers. I highly recommend this book to any safety professional who wants to broaden their knowledge and become a true well-rounded safety professional. Michael S. Schumann, M.S., J.D., PhD, CSHM Professor Occupational Safety Department of Safety, Security & Emergency Management Eastern Kentucky University, Richmond, Kentucky vii Reference Page – Law Cases Preface ANALYZING AND BRIEFING A COURT DECISION Safety professionals work with and for the law on a daily basis. In the United States, laws can be made by the executive branch (i.e., executive orders) or the legislative branch (i.e., new laws) and the judicial branch reviews and assesses the validity and applicability of these laws. This assessment by the judicial branch of our government is often called “ case law” and is the evaluation, assessment, and decisions of the courts at all levels up to, and including, the U.S. Supreme Court. Safety professionals should be aware that there are state courts as well as federal courts, and even specialty courts, such as Family Law Courts and Traffic Courts. Although the court name may vary, both the state and federal courts possess a hier- archy wherein each court decision can be appealed to a higher court by any of the parties involved in the actions. The highest court in most state judiciary systems as well as the federal judiciary system is the Supreme Court. For safety professionals who may be unfamiliar with their individual state judiciary system or the federal judiciary system, it is important to acquire a basic knowledge of the levels of the courts, namely the specialty courts, such as the tax court, the district, or trial courts, where most trials take place, the appellate courts, and the state top court or the U.S. Supreme Court. When reading a court decision, safety professionals may wish utilize the follow- ing outline: 1. Identify the court and date of the case at the top of the decision. 2. Look up any legal terms you are not familiar with. 3. Read the case in total. 4. Determine the type of case you are reading. 5. Review the case summary or headnotes. 6. Read the case again and identify the court’ s decision. 7. If an appellate case, identify if the decision was unanimous or a split decision. 8. Did the minority provide a dissenting opinion? 9. Re-read the case. Identify the parties, issues, and facts of the case. 10. Brief your case in writing so you will remember the issues, facts, and deci- sion at a later date. Safety professionals should be aware that although the courts are not supposed to make law, their decisions are in fact shaping and making new law. The decisions of the courts are often called “ case law,” which is the accumulation of court decisions that provide guidance and direction on current and future cases and decisions. As identified above, cases usually start at the lowest level in either the state or federal judiciary system and are appealed upward within the system to the top court, but can ix