A manager reports to you that one of your workers, Joe, has admitted to a problem with alcohol. Or perhaps there’s an accident in the workplace and the ensuing investigation reveals that Jane is a regular drug user. Or John arrives at the office, once again unfit to do his job because he’s “under the influence.”
Read MoreTags: Employer Best Practices, Health & Safety, Employee Rights, Workplace violence, Canadian
When an organization breaks the law, the actual actions must be taken by individuals associated with the organization–whether it’s a rogue individual or a vast internal conspiracy. So who’s culpable and for what? Laws often provide civil liability for most violations and criminal liability for the most severe, and many include parallel provisions addressed both to organizations and individuals. Most enforcement agencies produce enforcement and prosecutorial guidelines for agency personnel to provide criteria that channel their “prosecutorial discretion.” Variations in such guidelines may tend to keep organizations and their personnel aligned – as when they’re all going to be prosecuted together anyway–or may encourage fissures between them – as when one can reduce its own liability by incriminating another.
The U.S. Department of Justice (DOJ) conducts most criminal prosecutions brought against violators of U.S. federal laws. DOJ’s U.S. Attorneys also provide legal support to many federal agencies in civil cases brought by the agencies for regulatory violations. To regularize these wide-ranging responsibilities, DOJ promulgates enforcement policies and priorities, which are compiled in the “U.S. Attorneys’ Manual.”
DOJ has repeatedly adjusted its policies for prosecuting individuals in organizational wrongdoing cases. In 2003, DOJ issued an enforcement policy seeking to separate organizations from their agents – telling organizational defendants that indemnification of their officers (i.e., paying their defense costs under employment contracts and bylaws) would be interpreted as support for the individuals’ malfeasance, precluding DOJ from applying lenience to the organization for having “cooperate[d] in the investigation of its agents” (the “Thompson memorandum”). This policy was intended to prevent organizations from shielding their personnel, and so to encourage more individual prosecutions. However, this policy was rescinded after a 2006 court decision excoriated DOJ, holding that the policy violated individual defendants’ Constitutional rights by exerting undue pressure on organizations (U.S. v. Stein).
In 2006, DOJ softened the offending policy by reemphasizing that many criteria may apply to charging and prosecutorial decisions, and stating explicitly that an organization’s decision to follow state laws and establish indemnification provisions would not be considered a failure to cooperate sometime later with federal prosecutors (“the McNulty memorandum”; later enshrine in the U.S. Attorneys’ Manual section 9.28). Thus, DOJ policy for nearly a decade has not explicitly attempted to pit organizational defendants against their individual human agents – but also has not provided clear guidance to prosecutors in determining whether to proceed against organizational defendants, individual defendants, or both. During these years, the trend has been toward fewer prosecutions of individuals, even where it seems likely that top managers were integral participants in financial or regulatory violations. This lack of headline-grabbing prosecutions has produced a political backlash and pressure to re-balance prosecutorial policies.
In September, Deputy Attorney General Yates issued DOJ’s latest enforcement policy memorandum, addressing “Individual Accountability for Corporate Wrongdoing.” DOJ will apply this latest revision to all criminal prosecutions, and to civil enforcement as appropriate. The memo sets forth 6 basic criteria for U.S. Attorneys to apply and follow:
If organizations respond to these incentives by providing incriminating facts about individuals, the new policy will tend to create wedges between organizations and their personnel, which DOJ is now pledging to prosecute more vigorously. It remains to be seen how these incentives will actually be applied by prosecutors, followed by defendants, and reviewed by courts.
Tags: Corporate Governance, Employer Best Practices, Employee Rights
“No one should have to sacrifice their life for their livelihood, because a nation built on the dignity of work must provide safe working conditions for its people.”
– Secretary of Labor, Thomas E. Perez
Tags: Employer Best Practices, Health & Safety, OSHA, Employee Rights, California Legislation, Environmental risks, Environmental, Transportation
A wide variety of Occupational Safety and Health Administration (OSHA) standards require employers to acquire or create documentation of employees’ exposures to potentially hazardous materials and contaminants in their workplaces, and to inform employees of the presence of these hazards. For example, the Hazard Communication Standard (Hazcom) requires most employers to acquire Safety Data Sheets (SDSs) and provide workplace labeling and employee training. Other standards require employers to monitor their workplaces for airborne exposures to contaminants, and to compare such exposures to permissible exposure limits (PELs) or action levels. Some standards require employers to conduct medical monitoring of employees who are subject to such exposures. These records can be vitally important to provide information on long-term (chronic) health effects of exposures.
Tags: Employer Best Practices, Health & Safety, OSHA, Employee Rights, EHS, Hazcom
Although Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), regulation of important hazards remain on the drawing boards, awaiting appropriate testing and control methodologies, sufficient resources … and high enough political priorities. Until recently, one of these unregulated pathogens has been the legionella bacterium, first identified in 1976 as the cause of “Legionnaire’s disease” – named after an outbreak at an American Legion convention in Philadelphia traced to the hotel’s air conditioning system. This summer, however, an outbreak in New York has led state and local health agencies to adopt extremely ambitious testing and disinfection programs.
Tags: Employer Best Practices, Health & Safety, Employee Rights, Environmental risks, Environmental, EHS, EPA
Federal laws prohibit employers from basing employment decisions on a variety of factors, including “sex.” This term is not defined, leaving its interpretation to change and expand with social changes and court decisions. The central entity creating and applying these interpretations is the Equal Employment Opportunity Commission (EEOC), which administers and enforces Title VII of the Civil Rights Act of 1964 and a variety of subsequent laws. On July 15, EEOC reaffirmed its present interpretation, in an enforcement decision in which the plaintiff claimed he was denied access to a promotion because he’s gay (Baldwin v. Foxx). The EEOC’s order includes a clear summary of the agency’s approach to sex discrimination cases:
Tags: Corporate Governance, Business & Legal, Employer Best Practices, Employee Rights, Workplace violence, EEOC, NLRB
The Occupational Safety and Health Administration (OSHA) has just proposed to revise its requirement that employers prepare and maintain records of occupational injuries and illnesses as they occur – in “I&I Logs.” (I blogged about these requirements here). Employers must also post annual I&I Summaries in each workplace, and respond to survey questions if asked by OSHA or the Bureau of Labor Statistics.
Tags: Employer Best Practices, Health & Safety, OSHA, Employee Rights, Environmental risks, Environmental, EHS, Hazcom
Since it’s the middle of summer, you may have interns working in your office. If so, are they being paid for their efforts, are they receiving academic credits, or are they working to build their resumes, portfolios and connections? Some employers always pay, some never do, and some are open to negotiations based on the intern and his or her activities.
Tags: Business & Legal, Employer Best Practices, Employee Rights
Valley fever is an illness that usually affects the lungs and is caused by the microscopic fungus known as Coccidiodes immitis, which lives in the top two to twelve inches of soil. While the fungal spores may be present in soils throughout California, they are endemic in the Central Valley counties of Fresno, Kern, Kings, Madera, Merced, San Luis Obispo, and Tulare.
Tags: Employer Best Practices, Health & Safety, Employee Rights, California Legislation, Environmental risks, Environmental, EHS
When the majority of people hear the word “violence” they think of physical assault. Of course we know that acts of violence go beyond the physical to include any act in which a person is abused, threatened, intimidated, or assaulted. Every year almost two million U.S. workers report having been victimized by acts of workplace violence, yet many cases still go unreported. Workplace violence is a much bigger problem than many people realize, and it can happen anywhere at any time, and everyone is at risk.
Tags: Business & Legal, Employer Best Practices, Health & Safety, Employee Rights, Workplace violence, criminal background checks