Virginia based Dollar Tree Inc., was definitely on OSHA’s radar after receiving – and failing to rectify – hundreds of citations issued for a wide variety of violations at two of its Ohio Dollar Tree stores. Violations at the two retail properties for obstructed egress, unstable stacks, trip hazards, inaccessible electrical equipment and more has OSHA proposing nearly $1.25 million in penalties. This, however, is just the tip of the iceberg. A multi-year repeat offender Dollar Tree stores have been the focus of over 500 state and federal OSHA inspections uncovering over 300 similar violations since 2017. It is also interesting to note that none of the allegations included reports of injury or death. The moral of this tale? It does not pay to ignore violation citations, orders or regulations – it could actually cost, a lot.

Specifically, California employers should remember that recent legislation (i.e., SB 606) creates an “enterprise-wide” rebuttable presumption for employers with multiple worksites who violate an occupational safety or health standard, order, special order, or regulation. The presumption applies if the employer has a written policy or procedure that violates Cal/OSHA provisions or there is a record evidencing a pattern or practice of the same violation committed by the employer involving more than one of its worksites.

If an employer cannot rebut the presumption, California law authorizes Cal/OSHA to issue an enterprise-wide citation for egregious violations for each willful violation (as determined by Cal/OSHA), and count each employee impacted by the violation as a separate violation for purposes of the issuance of fines and penalties. In other words, the maximum penalty would be assessed per violation, per employee. The statute also authorizes Cal/OSHA to investigate the employer’s policies/practices or those of any related employer entity, to issue and enforce a subpoena for any failure to provide requested information. The ability to seek an injunction or temporary restraining order is also authorized.

All employers should be mindful of state and federal OSHA obligations including safety and agricultural-related employer required postings.  Posting information can be found using the resources listed below:

• Federal Occupational Safety and Health Administration (OSHA)
• California Occupational Safety and Health Administration (Cal/OSHA)
• Arizona’s Department of Occupational Safety and Health (ADOSH)

Agricultural Employer Posting Requirements:

• Notice re: Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
• Agricultural Employee Fair Labor Standards Act Rights
• Notice re: H-2A Workers Rights

A key aspect of the Family Medical Leave Act (FMLA) is its mandate that employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any rights” under the Act. A recent Seventh Circuit decision[i] highlights the employer’s duty to provide leave without interference, no matter how that interference may manifest itself. The decision further illustrates how an employer can violate FMLA rights without actually denying an FMLA leave request.

The employer (Cook County Illinois Sheriff’s Office) found itself in hot water when a supervisor allegedly discouraged the employee from taking protected leave. Specifically, the plaintiff, Salvatore Ziccarelli, a 27-year employee, called his supervisor to request FMLA leave to treat a serious medical condition. Ziccarelli alleged his supervisor discouraged him from taking FMLA,  telling the employee he had already taken “serious amounts of FMLA” and “don’t take any more.” Fearing he would be fired for requesting additional leave, Ziccarelli retired shortly after the conversation.

The Court emphasized that “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without denying an FMLA leave request.” In other words, mere discouragement can constitute unlawful FMLA interference.

Training is critical when it comes to leave-related issues. Supervisors and managers should be trained to identify red flag behaviors (e.g., sudden attendance or performance-related issues) and report them up the organizational structure to whomever is responsible for making leave decisions. Human resources or leave personnel should also be trained and encouraged to promptly respond to any leave-related situation by providing the employee with all necessary notifications.

Find FMLA-specific resources by visiting the EEOC’s FMLA resources page.  

California Code of Regulations, Title 8, Section 3342 requires covered employers (currently health care facilities) to develop and implement a workplace violence prevention plan (WVPP). Revised drafts of this regulation, making it applicable to general industry not just healthcare, were proposed in 2014 and 2018, but seemingly stalled out.  

The most recent draft proposal of May 2022, if adopted, changes various key definitions and will require all employers to develop and implement WVPP and to “record information in a violent incident log [] about every workplace violence incident.” Employers who have had no workplace violence incidents in the past five years will not be required to maintain a violent incident log.

The revised draft also includes mandated training on various aspects of the employer’s WVPP including the plan itself (e.g., definitions, development and implementation), how employees can receive a copy of the WVPP and report instances of workplace violence or concerns without fear of reprisal.

Cal/OSHA sought public input on its latest revision and closed the written comment period on July 18, 2022.

General industry employers should begin contemplating the development and implementation of a WVPP by considering how it might address the following WVPP requirements:

• WVPP (Plan) must be in writing and can be included in an existing Injury and Illness Prevention Program.
• Plan must be available to employees and authorized employee representatives at all times and include the following elements:
  • Names of job titles of the persons responsible for implementing the Plan.
  • Effective procedures to obtain active involvement of employees and authorized representatives in developing and implementing the Plan (e.g., identifying, evaluating, correcting workplace violence hazards).
  • How employer will coordinate implementation of the Plan with other employers when applicable.
  • Effective procedures for accepting and responding to reported incidents of workplace violence and prohibit retaliation for reporting.
  • Compliance assurance and communication of the Plan to employees.
  • Response procedures, training, correction, post-incident response and investigation, effectiveness review process.