How to Handle Employee Deaths

It is something you hope will never happen, but some employers eventually encounter employee deaths, whether due to an on-the-job incident or an off-the-job occurrence, including by accident, homicide or suicide. In any case, an employer should consider developing and having a plan to handle the situation.

Depending upon the circumstances, employee deaths can precipitate in the decedents' co-workers reactions ranging from sadness and grief to deep depression. Left unmanaged, the emotional, psychological and physical reactions of individuals in a group of co-workers to such an event can become co-reinforcing and affect the mood and morale of the workplace and thus the employer's business operations.

When a traumatic event occurs in the workplace, the employer should be prepared to respond appropriately to the affected employees. The employer should provide appropriate support to them no matter what the outside community may be doing for them. An employer commits a tragic mistake by ignoring a traumatic event and its impact on employees; doing so can impair the business's continued success and the employees' recovery and mental health. What an employer would do in any situation will vary and depend upon many variables. An appropriate response, however, is critical.

Here is a checklist of items that should be considered:

In General:

1. Designate a company spokesperson to respond to the family and the media. If the death occurred due to an on-the-job accident, consider engaging an attorney to represent the company. Otherwise, choose a high-ranking management person.

2. Train supervisors on handling an employee's death, such as to issues of confidentially, sensitively to subordinates, and reporting unusual employee behavior. See University of California guidelines on grieving at: http://death-response.chance.berkeley.edu/griefandloss.html.

3. Consider subscribing to an Employee Assistance Program, which can provide counseling to the company and individual employees.

4 Notify co-workers and staff. This should be done as promptly as possible. Moving quickly to accurately inform the staff helps to avoid speculation and rumors.

5. Review insurance policies, pension plans and the like for death benefits and procedures to follow in the event of a death.

6. Arrange for the final paycheck to be provide to the appropriate person. See "Final Paycheck" below.

7. Have a succession plan that identifies employees who are to step into key organization roles on short notice.

8. Periodically assess the workplace for possible workplace violence risks and how to mitigate them.

9. Consider how to handle memorials, flowers, donations, and condolence cards from the employer.

10. Consider issuing a bereavement or similar time-off policy.

11. Let employees feel free to go through the grieving process.

11. The employer should regard and handle all employee deaths in the same way, no matter the decedent's organizational status or position.

12. While letting employees know that the company is concerned about them, management should recognize and respect appropriate relationship boundaries. A business is not "family," and that boundary needs to be respected. The expression of sentiments such "we're all family" or "we all love each other" may be inappropriate, whereas statements such as "he was a valuable and well-respected employee" and "she contributed a great deal to us" maintain a more proper perspective.

Deaths Due to Work-Related Accidents:

1. Call Cal/OSHA within 8 hours. The 8-hour period includes weekends and holidays. Find the phone number on the Cal/OSHA poster; in the telephone directory's government section under "California, State of, Department of Industrial Relations, Division of Occupational Safety and Health, or Cal/OSHA Consultation Service; or at http://www.dir.ca.gov/ dosh/DistrictOffices.htm.

2. Contact your attorney.

3. Contact your workers' compensation carrier or broker.

4. Investigate the accident immediately. Record statements of those who witnessed the event. Photograph the accident scene.

Final Paycheck: Under the California Probate Code, a deceased employee's surviving spouse (or the guardian or conservator of the surviving spouse's estate) can authorize and direct the decedent's employer to pay to the spouse (or to the guardian or executor) salary or other compensation earned by the deceased employee.

The amount payable, including vacation pay, from all employers of the deceased employee is capped at $5,000 net. Any amount above that cap is presumably payable to the decedent's estate.

To exercise that prerogative, the surviving spouse (or the guardian or conservator of the surviving spouse's estate) must complete, execute and give the employer an affidavit or declaration stating certain facts. Here is a sample form for this purpose:

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EPA Considering Bilingual Pesticide Labels

The Environmental Protection Agency is considering whether U.S. pesticide labels should include health and environmental warnings as well as directions for use of the products in Spanish to better serve Hispanic farmworkers and consumers, an agency official said.

"EPA is looking at bilingual labeling," but it is only in the early stages of its review, according to Anne Lindsay, deputy director for programs in EPA's Office of Pesticide Programs. The issue is complex and could affect a range of parties, including the pesticide industry and state regulators.

The labeling issue was discussed at a meeting of the Pesticide Program Dialogue Committee, a panel that advises EPA. The committee includes members from the pesticide industry, growers, environmental and worker organizations, and state agencies.

EPA is conducting an internal analysis of labeling language issues, Lindsay said, including whether non- English speaking workers and consumers face any additional or "differential" risks from pesticide exposures compared with other consumers and workers who follow the current English-only U.S. product labels.

Under the Federal Insecticide, Fungicide, and Rodenticide Act, all pesticides must be registered by EPA following a regulatory review and all labels cleared by the agency before the products may be sold or distributed in the United States.

Any change in labeling would have "resource implications" for EPA because the agency would have to erect a regulatory system to determine whether translated label warnings and use directions for pesticides are accurate enough to protect consumers and workers, Lindsay said.

Julie Spagnoli, executive director of regulatory affairs for Clorox Services Co. and a PPDC member, said the industry wants to avoid facing different bilingual labeling requirements being promulgated by different states.

The industry already is concerned about some retailers, such as Lowe's home improvement stores, which has imposed a bilingual product-labeling requirement for certain products, she said.

PPDC members who represent environmental and farm worker organizations applauded EPA for its interest in the labeling language issue.

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'Technical' Violation of WARN Act Triggers Liability

Ownership had alerted its workforce of an asset-sale agreement, the successor corporation had invited employees to apply for jobs and, ultimately, only 40 employees did not obtain employment with the new entity. This does not sound like a scenario that would trigger liability under the Worker Adjustment and Retraining Notification (WARN) Act of 1988. But it did exactly that because there was a gap - here only eight days, but the actual length of time is irrelevant - between when the prior employer discharged all of its employees and when the asset sale closed.

Meridian argued that there was no WARN Act violation because fewer than 50 Meridian employees ended up without jobs with Nortrak. The District Court agreed with Meridian and dismissed the Complaint.

The Seventh Circuit disagreed and reversed the dismissal based on a literal reading of the statute. Judge Easterbrook began by noting that WARN applies to sellers once they sell their operations. The law says "any person who is an employee of the seller . . . as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale."

Despite a mid-December "handshake" agreement of Meridian to sell the assets of its Chicago Heights operations to Nortrak, there was an employment loss on Dec. 31, 2003, as no sale occurred until the closing of the deal on Jan. 8, 2004. As the employment loss occurred without the requisite 60- days notice, there was WARN Act liability. The fact that Nortrak gave many of the terminated employees of Meridian jobs was deemed irrelevant.

The Seventh Circuit acknowledged that had the asset sale closed just over one week earlier there would be no WARN Act liability.

EDITORS' NOTE: When a company contemplates the sale of its business, it should consult with legal counsel to ensure compliance with the provisions of the WARN Act. As this case shows, the WARN Act is a strictly interpreted statute, and good intentions will not protect a company from WARN Act liability.

(Source: Proskauer Rose, an international law firm that handles a full spectrum of legal issues. © 2007 PROSKAUER ROSE LLP.Anthony J. Oncidi 310.284.5690 - aoncidi@proskauer.com)

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Cesar Chavez Inducted Into California Hall of Fame

Cesar Chavez, the activist labor leader who founded the United Farm Workers of America, was inducted posthumously into the new California Hall of Fame on Dec. 6.

For more than three decades, Chavez led the first successful farm workers union in U.S. history, advocating for the rights of migrant workers until he died in 1993.

He was the second of 13 California leaders and legends inducted into the Hall of Fame. The California Hall of Fame is a part of the California Museum for History, Women and the Arts in Sacramento, a block from the state Capitol.

Gov. Arnold Schwarzenegger and First Lady Maria Shriver, as well as United Farm Workers President Arturo Rodriguez, attended the induction ceremony.

Chavez was inducted after President Ronald Reagan. Other inductees included Walt Disney, Amelia Earhart, Sally Ride, and Clint Eastwood.

"The Chavez family is grateful Gov. Schwarzenegger and First Lady Maria Shriver are honoring Cesar Chavez, as well as the example of a life dedicated to selfsacrifice and nonviolent social change that is vitally relevant today," said Paul Chavez, Cesar Chavez's son and the president of the National Farm Workers Service Center, a nonprofit organization founded by Cesar Chavez that provides housing to farm workers and runs an educational Spanish language radio network.

(Source: Field Report, Dec. 2006, Vol. 42, Iss. 12, National Council of Agricultural Employers, Washington, D.C.)

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Employee Free Choice Act Would Boost Unions

The U.S. House of Representatives in March passed by a wide margin the Employee Free Choice Act (EFCA), which would make it much easier for unions to organize if it were to pass the Senate and be signed by the President.

The EFCA would require the National Labor Relations Board (NLRB) to certify, without conducting an election, a labor union as the collective-bargaining representative for employees in a bargaining unit upon finding that a majority of them signed authorization cards stating they want the union to represent them.

This procedure would not apply where a union already represents the employees; in that case, future representation is determined by secret-ballot election.

Under the EFCA, the NLRB would have to set standards for determining whether authorization cards are valid.

The EFCA is also designed to make it easier for unions to negotiate initial collective bargaining agreements by establishing mandatory contract arbitration as follows:

• An employer and newly certified or recognized union must meet and begin bargaining within 10 days after the employer has received from the union a written demand to bargain (this period may be extended longer upon the parties' mutual agreement;

• If no contract has been signed within 90 days, either party may notify the Federal Mediation and Conciliation Service (FMCS) of the existence of a dispute and request mediation (this deadline may also be extended by mutual agreement) and

• If there is no agreement within 30 days after the date of the mediation request (or a longer deadline agreed by the parties), the FMCS must refer the dispute to an arbitration board established in accordance with FMCS regulations. The arbitration panel would have to render a decision settling the dispute and impose a two-year contract on the employer and the union that may be amended by their written agreement.

The EFCA also raises the stakes during organizing campaigns by increasing the penalties for unfair labor practices committed by employers, but not those committed by unions, as follows:

• The NLRB must seek an injunction against an employer if reasonable cause exists to believe that the employer discriminated against or discharged employees, threatened to discharge or discriminate against employees, or interfered with protected employee rights during an organizing campaign or afterwards, until the parties agree on a first contract;

• If an employer unlawfully discharges an employee during an organizing campaign, or afterwards until the parties have agreed on a first contract, the employee can recover back pay, plus two times the back pay as liquidated damages; and

• If an employer willfully or repeatedly interferes with protected employee rights or discriminates against employees during an organizing campaign, or afterwards until the parties have agreed on a first contract, the NLRB can impose a civil penalty of up to $20,000 for each violation.

Enactment of this law would give unions a huge advantage in organizing campaigns. Employers are often not aware that unions are organizing until after a majority of employees have signed authorization cards, which would be too late under this law. This will allow unions to obtain signatures by telling employees one side of the story, with no opportunity for an employer to respond.

In addition, many times employees sign authorization cards due to pressure from union organizers, peer pressure from other employees, or because they do not know what they are signing and are misled by the union.

This legislation has been pending since 2005, but was going nowhere until Congressional control shifted to the Democratic Party in the midterm elections. Since then, it has become one of the top legislative priority for Democrats and unions.

It is vitally important to preserve the opportunity for a healthy and vigorous debate over the pros and cons of union representation, as well as the right of employees to make their choice by secret ballot after hearing both sides of the issue. Employers concerned about handing over control of American business to unions should contact their Congressional representatives and voice their strong opposition to this bill, especially since 13 House Republicans voted in favor of it. Also, contact your industry associations to ensure they are aggressively opposing this bill.

Employers need a game plan to remain union-free, because if this law passes, they could be unionized before they even realize what's happening.

(By Patrick Moody, Attorney, Barsamian, Saqui & Moody, one of two law firms contracted by Farm Employers Labor Service to provide legal help to FELS subscribers under the FELS Group Legal Services Plan. Visit the firm's Web site at http://www.theemployerslawfirm.com/firm. The goal of this article is to provide employers with current information on labor and employment laws. Its contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360 in Fresno, (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.)

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DHS Expanding Electronic Verification System

The Department of Homeland Security is expanding the use of its voluntary "Basic Pilot" electronic verification system for new hires to allow immigration enforcement officers to launch investigations of potential fraud, according to Robert Divine, acting director of DHS's office of U.S. Citizenship and Immigration Services.

According to Divine, DHS could accommodate 7 million new employers participating in the program by the end of 2007. The cost would be slightly higher than $110 million in 2008, he said, to allow the government to hire more workers to help verify the status of non-citizen job applicants.

USCIS is planning to make greater use of its green-card database to provide "one-to-one" match for employers checking the employment eligibility of green-card holders. The agency also is updating its database of temporary workers so that it will include more information about those workers, including any adjustments to their status, Divine said.

It is unclear where the administration gets its estimate of $110 million to put 7 million employers on the Basic Pilot program. The Government Accountability Office has estimated that a mandatory, dial-up version of the program for all employers would cost $11.7 billion per year to administer, according to U.S. Chamber of Commerce Director of Immigration Policy Angelo Amador. Some of that cost, however, would be borne by employers, he said.

But Center for Immigration Studies Executive Director Mark Krikorian disputed the idea that putting all employers online to verify employment eligibility is a difficult task. In 2005, employers made 56 million hiring decisions, which translated into 215,000 hires a day. "That may sound like a lot, but it's not. Customers at I-Tunes download five times that many songs each day," he said.

While the Basic Pilot program was never envisioned as a tool to detect identity fraud, Divine said, the new system USCIS is working on will allow officials to detect patterns that could point to fraudulent activity with Social Security numbers (SSNs). Activity that suggests fraud, such as queries with the same SSN in "improbable patterns," would be referred to DHS's office of Immigration and Customs Enforcement for further investigation.

Fraudulent SSNs form the largest hole in enforcing unlawful hiring of undocumented workers, according to committee ranking Democrat Dan Lipinski (D-Ill.). While DHS can tighten up the employment authorization documents given to foreign workers in the United States, it cannot stop undocumented workers from pretending to be U.S. citizens, he said.

Divine acknowledged that problem, but added that if an SSN is used more than once in different locations at the same time, "our system will be improved to recognize that and cause action to be taken."

(Source: Field ReportMenu, July 2006, Vol. 42, Iss. 7, National Council of Agricultural Employers, Washington, D.C.)

Top AG Hazard? Lockout/Tagout

The most frequently cited Title 8 violation in agriculture by California's Division of Occupational Safety and Health (DOSH) is of General Industry Safety Order section 3314, informally known as the state's lockout/tagout standard. In 2005, DOSH issued 24 section 3314 citations to agricultural employers.

DOSH investigated three fatalities, seven amputations, and six injuries to extremities related to alleged violations of the regulation, which covers cleaning, repairing, servicing and adjusting prime movers and equipment.

Many of the top agriculture violations and injury sources involved machinery, as the accompanying chart shows. DOSH analyzed injury investigations in agriculture and subsequent citations to guide compliance officers when they visit worksites for non-injury inspections, such as enforcement sweeps under the Economic and Employment Enforcement Coalition. It could drive regulatory change and spur different questions from investigators, said DOSH Deputy Chief for Field Enforcement Vicky Heza during a presentation to Cal/OSH Standards Board. "It could result in Form 9 requests," she added, referring to official requests for regulatory change by the Division.

DOSH is conducting a similar analysis of construction injuries and violations. Heza said the ag analysis is "very preliminary," because of the labor-intensive nature of gleaning data from the federal information system, known as IMIS. "This table doesn't necessarily include 100 percent of the accident investigations we conducted in ag in 2005," Heza tells Cal-OSHA Reporter.

Additionally, the numbers of violations cited and injury numbers don't always agree because of incomplete information in IMIS, or when several subparts of a standard are listed with an injury. See chart on page 4 of this newsletter.

(Source: Permission to reprint from: Cal-OSHA Reporter, © 2007 Providence Publications, LLC , PO Box 2610, Granite Bay, CA 95746-2610 (916-780-5200). Free daily news summaries are available at www.cal-osha.com. Subscribe to a free Cal-OSHA Reporter email service containing safety news highlights.)

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More Ag Statistics from EEEC Inspections

Below are the agricultural statistics from the beginning of the Economic and Employment Enforcement Coalition, June 21, 2005 - Dec. 31, 2006. The second chart shows the citations broken out by Labor Code violations.

(Source: Labor and Workforce Development Agency)

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Cal/OSHA Encourages All Employers to Verify Inspector's Credentials

The California Department of Industrial Relations' Division of Occupational Safety and Health (Cal/OSHA) is investigating several incidents involving a man impersonating a Cal/OSHA inspector and suspected of defrauding restaurant owners. Several similar incidents have occurred across Southern California, in the costal region near Santa Barbara and in Roseville. An investigation is ongoing and is being coordinated with local law enforcement where the incidents occurred.

After producing what appears to be a valid identification, the suspect inspects the worksite, finding alleged safety violations that, according to him, add up to thousands of dollars in fines. The suspect then informs the business owner that he will not issue citations if they give him some cash immediately.

"It is important for all employers to know that a Cal/OSHA inspector will never request payment onsite, under any circumstance. Moreover, an inspector will never request payment in lieu of citations," said acting Division Chief Len Welsh. "We encourage all employers to ask for a state identification card and a business card. If the employer has suspicions that the individual is not a true Cal/OSHA representative, additional verification may be obtained by calling Cal/OSHA's local office to ask about the individual."

Business owners should know that Cal/OSHA citations are payable only after issuance of a citation, and the preferred method is through the mail to the California Department of Industrial Relations accounting unit. All payment details are clearly spelled out on the citation itself when it is issued. If an inspector ever requests payment on site for any reason, employers are urged to call Cal/OSHA headquarters immediately at 510-286-7000. Cal/OSHA will then contact local law-enforcement officials.

Worksite health and safety inspections are typically conducted with no prior notice and Cal/OSHA representatives identify themselves to the employer by showing their State of California Photo Identification Card and Division of Occupational Safety and Health business card prior to conducting an inspection.

The Cal/OSHA inspection protocol includes the following:

* An inspector first identifies him or herself and requests permission to conduct the inspection. The employer is legally entitled to deny the inspection. If inspection is denied, Cal/OSHA requests a court warrant and returns to the worksite with the warrant and conducts the inspection;

* Upon obtaining permission to conduct an inspection, the inspector first discusses with the employer his/her rights and responsibilities during an inspection, as well as what happens during the inspection process;

* An inspector walks and reviews the employer's premises and interviews employees;

* An inspection is concluded with another discussion that includes what hazards were identified; if citations will be issued, an inspector explains the process for those, as well.

* Cal/OSHA rarely issues citations on site;

* It is never proper for a Cal/OSHA investigator to request any kind of payment during the inspection.

Last month the Roseville Police Department issued a warrant for the arrest of a man it believes was part of two incidents in February involving impersonating a Cal/OSHA inspector.

For more on Cal/OSHA inspection procedures, local district office contact information, or general workplace safety, visit the Cal/OSHA Web site at www.dir.ca.gov/ dosh. For a copy of the Roseville Police press release of March 12, visit its Web site at www.roseville.ca.us/civica/press.

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Preparing for an OSHA or EPA Inspection

Those who work with hazardous materials or in other regulated areas need to be prepared for a possible inspection by a government agency, such as the Occupational Safety & Health Administration (OSHA) or the Environmental Protection Agency (EPA).

An inspection can be a good thing, if a shop uses it as an opportunity to assess safety practices and follows recommendations to improve those practices. On the other hand, an inspection can be a bad thing, if management just sees it as another way "the man" is coming down on the shop. This attitude could lead to unsafe conditions and environmental hazards, among other things.

Some inspections will be known, planned events; others will be random surprises. In fact, contacting local authorities and asking them to help you get your shop in order before any citations are issued is a great way to build a positive relationship with those groups overseeing your shop.

Since an inspection can theoretically happen at any time, shops must be prepared. Here are ways an employer can survive inspections from state or local agencies.

Be prepared

* If the owner or manager is not or will not be there for the inspection, someone else should be designated to handle it.

* Perform weekly in-house inspections. Good housekeeping is important.

* Be sure to keep all records current, filed and in order.

When an inspector arrives

* Welcome the inspector and be professional, cooperative and courteous.

* Check credentials.

* Ask why you are being inspected. Do not ask who reported your company.

* Only answer the questions the inspector specifically asks. Never volunteer any information.

* For OSHA inspections, you'll need several documentations. Be prepared to show the OSHA 300 Form (Injury Log) for the past five years, training and safety meeting records, a Material Safety Data Sheets (MSDS) binder, written programs and documentation.

* For EPA inspections, be prepared to show hazardous waste manifests, pick-up receipts for other waste streams and recycling records. Always keep all containers closed and labeled.

* Also make sure you have all the above documents for other inspections (county, fire, state, local, etc.)

* If the inspection is a result of a complaint, the officer may just want to go to the area that involves the complaint. Focus solely on that.

Walk-through inspections

* Accompany inspectors as they go through your shop. Do what the inspector does: Take pictures, notes, measurements, etc. This information could be handy to argue against any cited infractions.

* Correct any and all violations immediately, whenever possible.

* After an inspection, collect all information and keep it properly filed and in a safe place. You never know when you're going to need that material.

(Source: Automotive Body Repair News, April 1, 2007, by Troy Sympson)

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Court Protects Employee's Violent Outbursts

An employee claiming bipolar disorder was privileged to storm out of her boss' office, throw papers at the boss, and kick and toss objects around her cubicle, according to the Ninth U.S. Circuit Court of Appeals.

Gambini received a warning for her attitude. She claims she had bipolar disorder. During the meeting over the warning, she became upset, left the meeting, and then started kicking her cubicle and throwing objects. Employees complained they were in fear of her next outburst. The company hospitalized and provided her with Family and Medical Leave Act paperwork. It later ended her employment.

Gambini sued and lost the case at trial. In Gambini v. Total Renal Care, deciding the case under Washington law (but tracking its own Americans with Disabilities Act jurisprudence), the Court of Appeals said the jury should have been instructed that "if it found that her conduct at issue was caused by or was part of her disability, then it could find that one of the substantial reasons she was fired was her bipolar condition."

That means a jury must consider whether the conduct at issue is associated with a mental disability that cannot be seen or really measured. Is the conduct due to an impairment, or just the result of a bad day, or someone emboldened by ADA protection maybe?

Consider a state like California where nearly every condition is a disability. Any conduct an employee can attribute to a disability is protected? What if the employee's symptoms include breaking things or setting them on fire? What if the employee "because" of a disability does not control bodily functions? How about touching other employees? Cursing? Taking unannounced days off?

Yes, these examples are subject to an "undue hardship" analysis, but the employer has the burden of proving undue hardship, and it's a tough burden. Direct threat? Even tougher! What if the employer fired 20 people without disabilities for throwing objects at a supervisor? The person with a disability gets a pass? I understand there are folks with real disabilities who need a boost. But I don't think the ADA was intended to be stretched in this fashion. Additionally, the opportunity for abuse is pretty high with a decision like this.

Tiny bright spot for the employer: The Ninth Circuit said the FMLA claim was properly dismissed because the employer showed it would have fired Gambini regardless of whether she took leave.

(Source: Jennifer Brown Shaw, Esq., Shaw Valenza LLP, 520 Capitol Mall, Suite 630, Sacramento, CA 95814, (916) 326-5150 jshaw@shaw valenza.com www.shawvalenza.com)

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State Fund to Conduct Heat-Illness Seminars

The Stockton District Office of State Compensation Insurance Fund will host free "Heat Illness Prevention" seminars next month. Each seminar will be open to the public.

These seminars are designed to inform employers and supervisors about the state's Heat Illness Prevention regulation. Learn how it applies to workers and how you can meet the Cal/OSHA standard by updating and implementing your Injury and Illness Prevention Program.

All seminars will have an English presentation from 9 to 11 a.m. and a Spanish presentation from 1:30 to 3:30 p.m.

The seminars will be presented as follows:

May 1 Stockton District Office of State Fund

3247 W. March Lane, Stockton

May 3 Ramada Inn - Santa Nella

13070 State Hwy 33, Santa Nella

May 9 Merced County Ag Center

2139 Wardrobe Ave., Merced

May 15 Harvest Hall - Stanislaus Ag Center

3800 Cornucopia, Modesto

To register, contact Aurora Zendejas at (209) 476-2723 or amzendejas@scif.com. Please provide her with your company name, phone number and number of participants.

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