On November 22, 2022, a Virginia Walmart employee reportedly opened fire in a staff break room, killing six co-workers and injuring several others. On January 23, 2023, a California mushroom farm employee shot and killed seven people at two locations, one of which was his place of employment.  These tragedies are just two examples of workplace violence that has become all too common in the United States. Every year, thousands of American workers report that they witness or are victims of workplace violence, ranging from harassment to homicide.  These incidents also often lead to reports of trauma and post-traumatic stress disorder.

In addition to injuries and tragic loss of life, incidents of workplace violence can result in increased costs and legal liability for employers. For example, at least one victim in the November 2022 Walmart shooting sued Walmart, seeking $50 million. In the complaint, the victim alleged that Walmart continued to employ the shooter despite numerous written complaints and knowledge of the shooter’s bizarre and threatening behavior leading up to the shooting. Possible claims against employers in the wake of workplace violence can include:

  • Negligent hiring, training, retention, and supervision;
  • Infliction of emotional distress;
  • Breach of duty to warn;
  • Breach of duty to provide adequate security; and
  • Breach of contract (implied or express).

With many motivations to avoid incidents of workplace violence, the following are some preventative and responsive steps that employers can take:

  1. Pre-employment screening. When considering applicants, employers should examine any unexplained gaps in employment, check references, examine any prior discharges, and look for signs of instability. Employers should pay special attention to “red flags” such as a history of drug or alcohol abuse, past conflicts with co-workers, convictions for violent crimes, a defensive or hostile attitude, or tendencies to blame others for problems.
  • Current employee awareness. Supervisors and employees should remain vigilant for activities or behavior that may indicate the potential for workplace violence. Such activities or behavior may include: bringing weapons to work and/or displaying weapons; vandalizing or sabotaging company property; violating others’ privacy (searching desks, stalking, etc.); or making direct or veiled threats. Violent employees rarely “just snap” – they typically exhibit a pattern of angry or aggressive behavior before they act.
  • Workplace violence training. Employers should implement periodic training for all employees, regardless of position, to educate them about: basic facts concerning workplace violence; the relationship between domestic violence and workplace safety; employer-specific workplace violence policies and employees’ rights and obligations under those policies; and how to identify and report problem behavior. Supervisors also should undergo training on how to properly escalate a report of workplace violence. Finally, employers should consider developing and conducting active shooter drills with all employees, such as teaching “Run, Hide, Fight” tactics.
  • Crisis and threat assessment teams. Employers can assemble an interdisciplinary group (comprised of employees from several departments such as human resources, security, legal, employee assistance, labor relations, etc.) to apply their knowledge and experience to develop a workplace violence prevention program. If appropriate, employers may want to include local law enforcement in their discussions.
  • Facility security measures. Employers should conduct a risk assessment of their facility and create a security plan.  Such a plan may include: limiting facility access to authorized personnel and instructing employees to not prop open doors; installing and maintaining a key card system; and installing security cameras.

While incidents of workplace violence never will be completely preventable, employers can dramatically decrease their risk with careful hiring practices, effective management and supervision, comprehensive policies and training, and regular crisis and risk assessment.

If you have questions about workplace violence prevention or any general labor or employment matters, feel free to contact Andrew Cleves (acleves@frantzward.com), Katie McLaughlin (kmclaughlin@frantzward.com), or another member of Frantz Ward’s Labor & Employment Group.

As part of its $1.7 trillion end-of-year spending bill, Congress passed two laws that provide new rights and protections for pregnant workers and nursing mothers – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).  Summaries of each law are provided below.


Modeled after the Americans with Disabilities Act (ADA), the PWFA requires covered employers (those with 15 or more employees) to provide reasonable accommodations to employees and applicants affected by pregnancy, childbirth, or related medical conditions, so long as it does not impose an undue hardship.  Previously, pregnancy had not been treated as a condition requiring accommodation under the ADA or other federal anti-discrimination law.

As with the ADA, a reasonable accommodation under the PWFA might include any number of changes to the workplace, like allowing more frequent restroom breaks or light duty work.  Also like the ADA, employers will be required to engage in an interactive process when considering the need for an accommodation. Notably, the PWFA provides that an employer may not require employees to take leave (paid or unpaid) if another accommodation is available.  The PWFA also prohibits discrimination based upon the need for an accommodation, or retaliation because an individual requested or used an accommodation.

The PWFA will take effect on June 27, 2023.  The Equal Employment Opportunity Commission (EEOC) is expected to issue regulations at some point in the next year.

The PUMP Act

The PUMP Act expands workplace protections for employees who need to express breast milk.  The new law expands on 2010 amendments to the Fair Labor Standards Act (FLSA) that required covered employers to provide non-exempt, nursing workers with reasonable break time and a private space (not a restroom) to express breast milk.  Under the new PUMP Act, these protections are now available to all workers and are expanded from one year to twoyears after a child’s birth.  Unless required by other state or federal law, employers are not required to compensate non-exempt employees for lactation breaks.  However, if a non-exempt employee is not completely relieved of all duties, these breaks will be considered compensable hours worked.

Before filing suit for a violation of the PUMP Act, an employee must provide their employer with notice of an alleged violation and a 10-day period to remedy it.  Like the prior 2010 law, employers with less than 50 employees are exempt from these requirements if compliance would impose an undue hardship. 

The PUMP Act’s expanded obligations for covered employers took effect on December 29, 2022.  The DOL is expected to issue additional guidance for employer compliance in the next 60 days.

Employer Takeaways

Employers should immediately take steps to ensure compliance with these new laws.  These should include:

  • Educating HR professionals and managers regarding the new obligations.
  • Updating policies and forms, including those related to reasonable accommodations, to reflect these new protections.
  • Updating training materials for supervisors and employees.

Please contact Mike Chesney (mchesney@frantzward.com) or any member of Frantz Ward’s Labor and Employment Practice Group with questions regarding compliance with these new laws.

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a rule banning provisions in employment agreements which prevent employees and independent contractors, for a period of time, from working for a competitor or starting a competing business. The FTC will accept public comments on the proposal for 60 days and consider those comments prior to issuing a final rule. The FTC’s proposal does not appear to address agreements barring confidentiality agreements or agreements barring solicitation of customers or employees of a former employer. The FTC does, however, intend to require employers to withdraw existing non-compete agreements and within six months, advise employees they are no longer in effect. The proposed rule would exempt companies that seek to require an owner selling a business from immediately re-entering the same industry. The FTC’s position is that non-compete restrictions block workers from switching jobs, depriving them of better wages and working conditions. The FTC also believes these agreements deprive businesses of needed talent. The FTC’s proposal is likely to meet legal challenges from business groups regarding the FTC’s authority to issue such a rule, as well as whether such a ban is justified. Frantz Ward LLP’s Labor and Employment Group is carefully monitoring these developments. In the meantime, if you have questions about the new proposed rule, please contact Douglas B. Schnee or any member of Frantz Ward LLP’s Labor and Employment Group. 

In March of 2020, the National Labor Relations Board (“NLRB” or “the Board”) finalized a rule that substantially overhauled certain parts of NLRB election procedures thereby providing additional protections to the rights of workers with respect to their ability to choose whether or not they wanted to be represented by a union.

More specifically, in 2020, the Board revamped three portions of its election procedure and weakened three historical doctrines that had protected unions from removal in certain circumstances:  1) with respect to “blocking charges,” whereby pending unfair labor practice charges filed by a union prior to a decertification election would delay an election, the Board in 2020 directed the regions in most situations to hold elections and count the ballots, but not certify the results until the unfair labor practice charge had been ruled upon (to see if the alleged conduct interfered with the vote), or to impound the ballots for up to 60 days before counting them; 2) with respect to the “voluntary recognition bar,” whereby challenges to a voluntarily recognized union were barred for a reasonable period of time (typically six months to a year), the Board in 2020 stated that unions were only insulated from removal if they notified the Board of their voluntary recognition and the employer had posted a notice alerting workers to their right to file for a decertification election within 45 days of the posting; and 3) with respect to certain collective bargaining relationships involving employers in the construction industry, whereby unions and employers can set terms and conditions of employment without the union having demonstrated majority support, the Board in 2020 reversed a long-standing rule that prevented employers from challenging a union’s removal more than six months after being recognized, and required a union invoking the removal bar to point to more than contract language to prove majority support.

On November 4, 2022, the National Labor Relations Board issued a proposal to roll back and rescind its 2020 rule and return to the pre-2020 status quo on the basis that the 2020 changes hampered the right of employees to choose their collective bargaining representative.  NLRB Chair Lauren McFerran stated, reversing these changes “will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,”   Hence, under the current proposal, unions would be able to file an unfair labor practice charge to block a pending decertification election, employers would be prohibited for a reasonable period of time from attempting to have a union removed after the employer had voluntarily recognized the union, and employers in the construction industry would also have to wait at least six months before challenging the majority support of a union they may have voluntarily recognized.

Interested parties have until Jan. 3 to comment on the pending proposal.

If you have questions about the NLRB’s proposed new rule or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

The Department of Justice has claimed its first victory in attacking “no-poach” agreements after a Nevada staffing company pled guilty and was sentenced to pay $134,000.  The case arose out of a concerted effort by the Federal Trade Commission and DOJ, first announced in 2016, to target companies who enter into agreements with competitors to fix wages or not hire each other’s workers.  The DOJ has taken the position that “no-poach” agreements constitute criminal conspiracies in restraint of trade, in violation of the Sherman Anti-Trust Act.

In the Nevada case, two nurse staffing companies providing nurses to a school district allegedly agreed to allocate nurse employees by not recruiting or hiring each other’s nurses assigned to that school district. They further allegedly agreed to refrain from raising the wages of those nurses.  As evidence of the conspiracy, the DOJ cited emails documenting the companies’ agreement:

  • The Branch Manager of the indicted company sent an email to Company A (not indicted) stating: “per our conversation, we will not recruit any of your active [school district] nurses.”
  • Company A employee responded with the following: “[a]greed on our end as well. I am glad we can work together through this[] and assure that we will not let the field employees run our business moving forward.”
  • In an email discussing refusing to negotiate further wage increases, the Branch Manager also stated “[i]f anyone threatens us for more money, we will tell them to kick rocks!”

The staffing company sought dismissal of the indictment on a number of grounds.  Factually, it highlighted that the company allegedly involved in the conspiracy (which the indicted company had acquired) ceased operations within a year of the alleged agreement, and that it no longer employed the offending Branch Manager.  Legally, the company argued that the DOJ was pursuing a novel and unsupported theory, because courts have not previously found “no-poach” agreements to be per se violations of the Sherman Act. Nevertheless, the court denied the company’s motion, leading to its guilty plea.

Though the case contains some unique facts, it is telling for several reasons. First, it demonstrates the DOJ’s increasing focus on prosecuting “no-poach” agreements.  The DOJ pursued this case even though the offending company no longer existed and the offending Branch Manager was no longer employed. Second, the criminal fine levied ($62,000) was higher than the federal guidelines would customarily recommend. Fines issued in these circumstances are based upon the volume of commerce (amount of business affected). While federal guidelines recommend a 20% ratio, modified by a company’s culpability, here the ratio was approximately 28%.  The fine could significantly increase for a larger company.  Third, all involved parties may face indictment, whether actively participating in the conduct or not. While the Branch Manager may have been the primary offending party, the DOJ prosecuted both him and his employer.

Companies should always carefully consider any agreements – formal or informal – they might enter with competitors, so as to avoid drawing antitrust scrutiny from the DOJ.  Similar to the government’s recent actions limiting non-compete restrictions, its recent focus on “no-poach” agreements reflects its attempt to shift power from the employer to the employee.   If you have questions about this or other Staffing, Labor and Employment, or Litigation issues, please contact Andrew Cleves, Chris Koehler, or a member of the Frantz Ward Staffing, Labor and Employment, or Litigation Practice Groups.

On October 21, 2022, the Equal Employment Opportunity Commission (“EEOC”) published an updated version of its “EEO is the Law” workplace poster with a new poster entitled “Know Your Rights:  Workplace Discrimination is Illegal”.  The new poster is simplified in that it uses plain language and bullet points which summarize the rights of employees and union members under laws enforced by the EEOC including:

  • Americans with Disabilities Act
  • Title VII of the Civil Rights Act
  • Equal Pay Act
  • Age Discrimination in Employment Act
  • Genetic Information and Nondiscrimination Act

The new poster differs from the previously mandated poster by:

  • Noting harassment is a prohibited form of discrimination.
  • Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation and gender identity.
  • Adds a QR Code for fast digital access to the EEOC’s webpage explaining how to file a Charge.

Covered employers (generally those with more than 15 employees) are required to display the poster in a conspicuous location at their worksites.  Additionally, while not required, the EEOC encourages employers to display the poster on the company’s website for employees who work remotely.

If you have questions about the new poster or a general employment question, feel free to contact Doug Schnee or any member of Frantz Ward’s Labor & Employment Group.

Employers should be preparing to take a close look at the current status of individuals they classify as independent contractors – especially those in the Construction industry.

On October 13, 2022, the Department of Labor (“DOL”) will publish a Notice of Proposed Rulemaking to help employers and workers determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. The DOL’s proposed rule will seek to clarify the current independent contractor standard by repealing the Trump Administrations “core factors” test and replacing it with the previously utilized economic realities/totality of the circumstances test. The DOL’s proposed rule will result in a significant change to the independent contractor analysis, and could have a major impact on how many construction employers classify employees. Even more so, employee misclassification issues can have potentially drastic consequences, resulting in DOL audits and wage and hour lawsuits, each of which can incur costly damages.

The prior rule placed particular emphasis on two core factors: the nature and degree of workers’ control over their work, and the opportunity for profit or loss based on initiative, investment or both. Without question, the prior “core factor” analysis allowed for a more lenient standard when identifying independent contractors. The new rule, however, places equal weight on all factors reviewed, analyzing (1) Opportunity for profit or loss depending on managerial skill; (2) Investments by the worker and the employer; (3) Degree of permanence of the work relationship; (4) Nature and degree of control; (5) Extent to which the work performed is an integral part of the employer’s business, and (6) Skill and initiative.

Going forward, the DOL’s proposed rule will have a significant impact on how construction employers classify employees, because they will no longer be able to rely solely upon control and financial investment as part of the determination. Rather, employers will need to review all six factors outlined above, which can be difficult in an industry where employees are generally businesses in and of themselves. How the new test will play out in relation to subcontractors and other vendors working on jobs sites is something construction employers will need to monitor closely in the future.

The DOL’s October 13 notice is still subject to a comment period, which will run until November 28, 2022. The comment period could result in some modifications to the proposed rule; however, employers should still prepare for some change to the current independent contract standard, and begin to make any necessary changes to their current workforce.

Regardless of the standard in place, employers should also remember that the test as to whether an individual is an employee or an independent contractor is heavily dependent upon the duties they actually perform while on the job. Construction employers should be especially sensitive to this understanding given the varying jobs and responsibilities individuals complete on and at the job site. An independent contractor agreement alone is not enough to justify an individual’s classification.  If you have questions about independent contractors currently working on your job sites, or general employment questions, feel free to contact Michael J. Frantz Jr., Jon Scandling or any of Frantz Ward’s Construction or Labor & Employment Attorneys.

On October 3, 2022, the National Labor Relations Board (NLRB) ruled that employers must continue deducting union dues from employees’ paychecks, pursuant to their labor contracts, even after the contracts expire. The case is Valley Hospital Medical Center, Inc., N.L.R.B. Case 28-CA-213783 (Valley Hospital II).

Dues checkoff previously served as an exception to the National Labor Relations Act’s unilateral change rule, which prohibits employers from changing mandatory subjects of bargaining, such as wages and hours, without giving unions the opportunity to negotiate over their terms. The Board first implemented the dues check-off exception in 1962, in Bethlehem Steel. That rule lasted until  2015, when the Obama-era Board reversed it in its Lincoln Lutheran of Racine decision.

The Trump-era Board then resurrected Bethlehem Steel in Valley Hospital in 2019 (Valley Hospital I), but on appeal, the Ninth Circuit remanded that case for further review.  And on remand, in Valley Hospital II, the NLRB’s new Democratic-majority Board concluded that dues check-off is indeed a mandatory subject that cannot be changed upon contract expiration.

In its dissent, the NLRB’s Republican Board minority criticized Valley Hospital II  as contrary to the Bethlehem Steel rule that was consistently applied for over 50 years. The Republican minority also criticized the decision as inconsistent with Section 302 of the LMRA. Not only does that statute prohibit employers from deducting dues absent the employee’s written consent, but also, it  expressly states that such consent must be revocable once the “applicable collective bargaining agreement” expires. According to the Republican minority, this language gives dues check-off a special status apart from other terms and conditions. The majority disagreed, however, and Valley Hospital II is now the law.

Valley Hospital II  is a meaningful victory for unions, as it boosts their leverage in labor negotiations. Previously, employers had the option to cancel dues deductions, weakening the union’s revenue stream  and thereby incentivizing the union to reach a new agreement more expeditiously.  Under Valley Hospital II, those deductions will continue while the union leverages its other economic weapons, such as striking. To be sure, the employer can still deploy its own weapons in these situations, but Valley Hospital II does help shift the leverage in favor of the union.

It can be a disheartening fact of life for employers that, even when they do everything right and follow all applicable safety rules and regulations to the letter, employee injuries can still happen. It is also often frustrating that those injuries, even in the absence of any wrongdoing by the employer, will result in workers’ compensation claims that can adversely impact the employer in a variety of ways. Is there anything employers can do to defend themselves against those claims involving injuries that seem to have just happened with no apparent explanation or associated hazard as the cause? Yes, actually—if the injury was the result of an idiopathic cause.

Under Ohio Workers’ Compensation law, idiopathic injuries are generally not compensable. The Ohio Supreme Court defines the term, “idiopathic,” in the context of on-the-job injuries as “an employee’s pre-existing physical weakness or disease which contributes to the accident.” Waller v. Mayfield, 37 Ohio St.3d 118, 524 N.E.2d 458 (1988). Essentially, an idiopathic injury is one that was caused by some circumstances personal to the particular employee rather than caused by any risk associated with the employment. Perhaps the most common example of an idiopathic injury would be an employee getting hurt due to a fainting episode or a seizure at work. If an otherwise idiopathic injury is somehow worsened by a risk or hazard of the employment, however, it is still compensable; so, if an employee suffers a seizure at work but then hits their head on some piece of work equipment during their fall, the employer may not be able to avail themselves of the idiopathic injury defense.

Like many other areas of workers’ compensation law, whether an injury is due to an idiopathic cause and whether the employment worsened the injury are fact-specific inquiries. Moreover, in some cases, there is no apparent or even alleged explanation for how the injury happened whatsoever. In cases of unexplained falls, in particular, the burden shifts to the employee to eliminate idiopathic causes for the fall in order to establish the compensability of their claim.

In sum, even in Ohio’s no-fault workers’ compensation system, employers are not always fully defenseless when it comes to unexplained injuries. Careful accident investigation and review of the medical evidence can sometimes reveal idiopathic causes for previously unexplained accidents and provide a defense against the claim. And even in cases of fully unexplained employee falls, employers can take advantage of the burden shift and force the employee to eliminate possible idiopathic causes of their injuries.

According to recent reports from the Bureau of Labor Statistics, women make up roughly 10% of jobs in the construction industry, 30% in manufacturing, and as of 2021, and 75% of healthcare and social assistance jobs.[1]  Although those numbers may have dropped during the COVID-19 pandemic, women are beginning to return to the workforce in what continues to be a very tight labor market.  In addition to being great tools for recruitment and retention, PPE fit issues in these three vital segments of a precarious US economy are also emerging as areas for potential legal pitfalls and additional cost that employers should examine carefully.

According to a 2019 report from the American Society of Safety Professionals, getting properly fitting PPE is still a challenge for female workers, and can lead to several adverse workplace events, the most obvious of which are safety-related.  Ill-fitting PPE can pose a range of safety risks to workers in any industry, some which by example may include: loose clothing snagging on ladders or pulling workers into production equipment, too-large gloves exposing the skin to chemical and cut hazards; sprains from trips, falls and prolonged use of too-wide steel-toed boots; and repetitive strains, motion disorders, and nerve conditions in wrists and forearms from use of hand tools with “standard” grip sizes – all of which may increase an employer’s OSHA recordable and reportables, including DART rates, and discourage employees from using PPE at all.

And as experienced EHS professionals know, where OSHA injuries and illness go, so too do workers’ compensation claims, creating additional cost and disruption to the business.

Lastly, and in addition to the risk of losing valuable, experienced talent employers are working hard to retain, PPE can also be the basis for various gender discrimination claims alleging disparate treatment and loss of job opportunities (think NASA cancelling its first attempt at a history-making all-female spacewalk in early 2019 because there weren’t enough medium-sized spacesuits).  Making sure women can perform work safely not only reduces these risks, but also serves as an important tool for inclusion and making women feel welcome on the job.

By considering the legal and non-legal implications of gender-specific PPE, employers can avoid the lose-lose situation likely to affect employees and employers alike.

[1] See https://www.bls.gov/opub/reports/womens-databook/2020/home.htm#:~:text=However%2C%20women%20were%20substantially%20underrepresented,and%20construction%20(10.3%20percent); https://www.bls.gov/spotlight/2022/the-construction-industry-labor-force-2003-to-2020/home.htm; https://www.bls.gov/opub/ted/2022/over-16-million-women-worked-in-health-care-and-social-assistance-in-2021.htm#:~:text=Source%3A%20U.S.%20Bureau%20of%20Labor,End%20of%20interactive%20chart.&text=In%202021%2C%2016.4%20million%20women,million%20workers%20in%20the%20industry.