January 2014 - Issue 23

Workers' Compensation Root Cause Program Update

Brawley Invites Public Into New Emergency Operations Center

Commerce Opens 'Ground Zero' Emergency Center

After-Acquired Evidence of Prior Conviction Disqualified Applicant from Position

Timing Significant in Wrongful Termination, Retaliation Case, California Court Finds

Fed-OSHA May Introduce Mandated Injury & Illness Prevention Program (I2P2) by September of 2014

News: Worthy

Workers' Compensation Root Cause Program Update

by Bob May, Risk Management Program Manager

The Authority has been working with eight members to pilot test the collection of root cause claim information. The seven-month pilot was to gather critical information as to "why" an employee was injured in the performance of their duties. A set of data questions looked at six terminal categories. The categories were equipment, work environment, policy/procedure, training, supervision and worker (employee). Each terminal category had a set of causation factors to choose from as to the root cause resulting in the employee's injury. The causation information was collected through the use of a supervisor's report which was submitted to York Risk Services as part of the claim reporting requirements. 

166 root causes were reported which showed the following results:

Root Cause Frequency Paid to Date Total Severity
Inadequate protective equipment - clothing 19 $44,541 $68,202
Unsafe procedures or work place 8 $19,190 $87,323
Employee was not trained for task 2 $4,384 $65,227
Arrangement of equipment - work flow tools 24 $206,806 $491,902
Poor housekeeping 7 $25,539 $115,556
Distracted - inattentive 30 $101,019 $289,395
Non-preventable 29 $24,290 $136,115
Presumption 15 $11,997 $129,746
Short cuts - carelessness 32 $115,297 $227,045
TOTAL 166 $553,063 $1,610,512

 Based on the trial results, the Authority will soon move forward with a pool-wide program to gather information to help members control the frequency and severity of workers' compensation claims, and expects to go live beginning March 1, 2014.

The root cause program is designed to identify the underlying cause of the claim for two reasons. First, members will learn of the system or control that failed and resulted in the claim. This information can then be used for their own internal purposes, such as safety meetings. Second, the information will help the Authority deliver member-specific training, risk management, and organizational support designed to prevent the claim from recurring in the future.

The collection of the root cause information will occur through the intake desk at York Risk Services. The desk will make contact with the employee's supervisor after the 5020 report has been filled. The supervisor will be asked a set of root cause questions to determine what was the actual root cause that resulted in the employee's injury or illness. This should occur within five days of the filling of the 5020 report. 

The root cause information will then be imported into the Authority's database, which will then provide metrics to members, including conditions that existed which led to the employee's injury or illness. 

Between now and March, each agency's assigned risk manager will be providing more information on the roll-out of the root cause data program.



Brawley Emergency Operations Center

Re: Members

Brawley Invites Public Into New Emergency Operations Center

Reprinted from the Imperial Valley Press, January 23, 2014

Members of the public got an up-close and inside look at the new Brawley Emergency Operations Center, the renovated Police Department, and a chance to hang out with the Brawley police and fire chiefs during an open house reception Wednesday night.

The 17,000 square-foot EOC is located at the police station in an area that used to be part of the station's parking lot. The project was largely possible through a roughly $500,000 grant from the U.S. Department of Homeland Security. Renovations of the Police Department and the EOC's Internet technology infrastructure were possible through an additional $500,000 in federal asset forfeiture funds.

"These projects are delivered with a ton of sweat and tears, and our departments have worked really well together to leverage resources internally," said City Manager Rosanna Bayon-Moore in thanking staff. "We hope the facility isn't needed but we are prepared for the time that we are called to use it."

Mayor Don Campbell thanked former chief Mark Gilmore, who retired last year, for his work on the project to applause of the crowd.

"Being the mayor for this city, I'm really pleased to see this facility come about," he said.

The EOC is a place for strategic overview of any man-made or natural disasters, explained Fire Chief Chuck Peraza.

An EOC can be partially or fully activated depending on the need, and once that occurs, the city department heads go there to start receiving information and getting an idea of how to allocate resources accordingly. It can also be used by outside emergency responders in large-scale disasters.

The city previously used various locations around the community as an EOC during the city's swarm of earthquakes in August 2012, and this EOC will now serve as the permanent location.

"I think we're prepared as we ever have been in the city of Brawley," said Police Chief Mike Crankshaw.

Police officers took groups on tours of the police station, where they could see the chief's office, dispatchers at work, evidence rooms and more.

The station was repainted, had flooring redone, technology updated, spaces repurposed and furniture updated over the last year in phases, and many marveled at the improvements.

One visitor noted that he had worked in the building when it was a Bank of America building. It still has a vault in it from its banking days.

Visitors Wednesday included high school students like Tyler Altamirano, Julian Olivera and Daniel Luna.

"It's an honor because a lot of people can't just come in here," Olivera said.
"I enjoy it because we become involved in the community and meet new people and of course, see what tax dollars go toward," Altamirano said.

Bayon-Moore encouraged anyone in the community with more interest in the EOC to contact the city for more information.



Commerce Emergency Center

Re: Members

Commerce Opens 'Ground Zero' Emergency Center

Reprinted from EGP News, January 21, 2014

Just days following the 20 year anniversary of the Northridge earthquake — which caught many public safety departments in the area unprepared to deal quickly with the devastation — the City of Commerce has opened a new state-of-the-art Emergency Operations Center, (EOC).

During a ribbon cutting ceremony Tuesday attended by Congresswoman Lucille Roybal-Allard and other community leaders, city officials said the facility will serve as the city's headquarters for first responders during a local or major disaster.

"The new EOC provides us with the technology and just as importantly, a stable environment to respond quickly and efficiently to natural disasters and other emergencies," said Mayor Joe Aguilar in a written statement. "The safety of our residents is always our number one priority so we built this facility to better meet that need."

The emergency operations center is located within a few blocks of City Hall, where many of the offices for city departments and staff are housed.

Roybal-Allard helped secure the $1 million grant from the U.S. Dept. of Homeland Security to fully fund the building of the facility, which city officials say is completely secure and fire resistant.

The center also features a fully integrated audio/visual system allowing staff to track progress on incidents, as well as monitor emergency operations, notes a city press release. The high-tech facility will also allow the city, in a coordinated manner, to communicate with Los Angeles County and other regional and state emergency operations centers.

A backup generator will ensure operations continue even during power outages.

The congresswoman said she was proud to be able to partner with the city to secure the federal funds needed to make the emergency center a reality.

"I commend all of the stakeholders for having the foresight to invest in this project, which benefits the residents and businesses of the City of Commerce, the 40th Congressional District, and our entire region, as well," said Roybal-Allard. Congratulations to the City of Commerce, the city council and staff, and the construction team on a job well done!


The Court Report

After-Acquired Evidence of Prior Conviction Disqualified Applicant from Position

Reprinted from the Society for Human Resources Management, December 20, 2013

Evidence of a prior narcotics conviction could be used to show that the employee was not qualified for a union organizer position, even though the employer did not learn of the conviction until after it made the decision not to hire the plaintiff, the California Court of Appeal ruled. Although the after-acquired evidence doctrine would bar the use of the conviction to prove the employer's motive for refusing to hire the employee, the court stated the conviction could be used to show the employee failed to satisfy a prima facie racial discrimination case under the California Fair Employment and Housing Act. Accordingly, the court affirmed summary judgment in favor of the employer. 

Background

Raymond E. Horne, an African American man, was a glazier and a member of District Council 16 International Union of Painters and Allied Trades. In 2009 and 2010, Horne applied for an organizer position with the union. The union did not hire him, selecting a white man to fill the position on both occasions. Horne sued the union for race discrimination.

During pre-trial discovery, Horne admitted he had been convicted of possession of narcotics for sale in April 1997, had served a prison term for that conviction, and was paroled after that term of imprisonment on May 30, 2003. The union did not know this when it decided to hire someone else for the organizer positions. After learning of the conviction, the union moved for summary judgment in the race discrimination case, arguing that Horne failed to establish a prima facie case because he was not qualified for the position. Federal law barred Horne from employment as an organizer due to the narcotics conviction. Horne opposed the motion, arguing the union could not rely on after-acquired evidence to justify its failure to hire him. The trial court agreed with the union and granted the motion. It found Horne could not establish a prima facie race discrimination case because he was not qualified for the position.

Applicable Law

California has adopted the three-stage burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for establishing a discrimination claim. First, the employee must prove a prima facie case of discrimination by a preponderance of the evidence. In a failure-to-hire case, the employee must show he was qualified for the position. If he does so, then the burden shifts to the employer to offer any legitimate, non-discriminatory reasons for failing to hire him. Then, the employee must prove the employer's stated reasons are pretextual. 

The after-acquired evidence doctrine precludes consideration of evidence bearing on the employer's motive that was unknown to the employer before the decision not to hire the plaintiff was made. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). The reason for the rule is simple: an employer could not have been motivated not to hire a job applicant based on information it did not have at the time the decision was made.

After-Acquired Evidence

Horne argued the after-acquired evidence doctrine precluded consideration of his conviction because it was unknown at the time the hiring decision was made. The appellate court disagreed. It noted the doctrine would preclude consideration of the conviction insofar as it related to the union's motive in failing to hire him. However, the issue was not the employer's motive, but Horne's qualification for the position. "Evidence that the applicant was disqualified as a matter of law at the time of the employment decision is relevant, whenever the employer acquired that information," the court stated. It found the union was entitled to present evidence rebutting Horne's claim that he was qualified for the position, even if that evidence would not have been admissible for the employer's burden of showing a legitimate non-discriminatory reason for failing to hire him. Accordingly, the court concluded Horne had failed to establish a prima facie case of race discrimination and affirmed summary judgment in favor of the union.

Horne v. Int'l Union of Painters and Allied Trades, Dist. Council 16, Cal. Ct. App., No. A135470 (Dec. 3, 2013).


The Court Report

Timing Significant in Wrongful Termination, Retaliation Case, California Court Finds

Reprinted from CalPELRA Clips, January 23, 2014

Finding a triable issue of fact existed as to whether the employer's stated reason for terminating the employee, that the employee violated his confidentiality agreement, was pretextual, the California Court of Appeal reversed summary judgment in favor of the employer in a wrongful termination and retaliation case. Redeker v. Collateral Specialists Inc., No. A136291 (Cal. Ct. App. Nov. 4, 2013) (unpublished). The Court questioned the timing of the employee's termination, which occurred shortly after he had contacted government agencies regarding the employer's classification of certain workers as independent contractors. 

Background

James A. Redeker was employed by Collateral Specialists Inc. ("CSI") as its Operations Manager, reporting to CSI's Vice President of Operations. As a condition of employment, Redeker signed a confidentiality agreement.

In November 2009, Redeker told his supervisor and CSI's President that he was concerned about CSI's classification of its field representatives as independent contractors. Redeker suggested that the field representatives should be reclassified as employees and was told that it would be too expensive to reclassify the field representatives.

Nevertheless, Redeker continued to examine the classification of field representatives. On January 26, 2010, Redeker e-mailed his supervisor that he had further researched the issue, even contacting officials in three states. He then urged that CSI to further examine state law to ensure it was acting legally. 

Redeker's supervisor was surprised since he thought the issue had been resolved at the November 2009 meeting. The supervisor forwarded Redeker's e-mail to CSI's President and CSI's Executive Vice President. The President and Executive Vice President decided to review Redeker's other e-mails on the corporate servers. As a result, CSI learned that Redeker had forwarded an electronic file containing a list of CSI's field representatives from his work e-mail account to his personal e-mail account in early January 2010. CSI considered the file to be confidential information under Redeker's confidentiality agreement.

Redeker originally had obtained the field representatives file in December 2009 and used it to check against names in public records in a sex-offender database. His review of the file revealed three matches. On January 5, 2010, Redeker e-mailed his supervisor about his investigation and the matches. He also indicated that he had checked half the list and wanted to know whether he should continue his review. On January 6th, Redeker's supervisor e-mailed that he should "hold off" until he spoke with CSI's President and that he would get back to Redeker the following week. Later that day, Redeker spoke with his supervisor. They disagree about what happened next. The supervisor maintained that he told Redeker to stop the review, while Redeker claimed that the supervisor allowed him to continue the search from home that evening. 

Redeker e-mailed the file to his personal e-mail account later on January 6, 2010.
On January 7th, his supervisor e-mailed Redeker that the field representatives had been deactivated. He also noted that CSI plans to review all newly contracted representatives. Redeker was thanked him for his efforts.

On March 15, 2010, Redeker e-mailed his personal attorney from his work computer for advice about the classification issue and possible retaliation. Later that day, Redeker's employment was terminated for violating his confidentiality agreement. 

Redeker subsequently sued CSI for wrongful termination in violation of public policy and whistleblower retaliation under California law. CSI moved for summary judgment. The trial court granted the motion, finding Redeker did not establish that CSI's reason for his termination was pretextual. Redeker appealed.

Applicable Law

Claims under California Labor Code § 1102, as well as public policy wrongful termination claims, are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish a prima facie case by showing (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link between the protected activity and the employer's action. The employer then must present evidence that it had a legitimate, non-retaliatory reason for its action. The burden then shifts to prove that the employer's proffered reasons were pretextual. To prove pretext, the employee may show that "the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or[] the proffered reason was insufficient to motivate the discharge." Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 224 (Cal. Ct. App. 1999).

Issue of Fact

Redeker argued that a genuine issue of material fact existed regarding whether the employer's proffered reasons for his termination was pretextual as the parties disputed whether he had permission to continue the sex offender check. The appeals court agreed. The Court noted Redeker maintained that his supervisor gave him permission to continue his investigation and that is why he sent the file to his personal e-mail account. Redeker's supervisor, on the other hand, contended that he told Redeker to stop the investigation. Thus, the Court said, a factual question existed regarding whether Redeker had violated his confidentiality agreement.

In addition, the Court found the timing of Redeker's termination to be suspect since it occurred only a few weeks after he sent the e-mail disclosing that he had been discussing the field representatives' classification issue with government agencies. The Court further noted that it could be inferred that CSI started monitoring Redeker's e-mail to find a reason to fire him, which "suggests that the subsequent [termination] imposed was for purposes of retaliation." Accordingly, the Court concluded Redeker had raised sufficient factual issues regarding pretext, reversed summary judgment and returned the case to the trial court.

***

This case reminds employers of the importance of thoroughly investigating alleged employee wrongdoing prior to termination, including conducting employee interviews and contemporaneously documenting the reasons for an employment decision. To address employee concerns about illegal or unethical conduct in the workplace, employers should consider developing a comprehensive reporting procedure so that issues may be timely addressed and litigation possibly avoided.



Risk Solutions

Fed-OSHA May Introduce Mandated Injury & Illness Prevention Program (I2P2) by September of 2014

by Bob May, Risk Management Program Manager

What is I2P2 and will it impact your agency? I2P2 is the new acronym coined by Federal OSHA's director, Dr. David Michaels, to designate Fed-OSHA's push to create a nationwide Illness, Injury Prevention Program. For nearly three years, OSHA Director Dr. David Michaels has called the promulgation of an I2P2 program a top OSHA priority. 

The spring agenda had listed a January 2014 publication date for the proposed rule. The notice of proposed rulemaking for OSHA's Injury and Illness Prevention Program Standard has been delayed and now lists a publication date of September.

Workplace incidents cause an enormous amount of physical, financial and emotional hardship for individual workers and their families. Workplace injuries and illnesses can not only cause physical pain and suffering but also loss of employment and wages, burdensome debt, inability to maintain a previous standard of living, loss of home ownership and even bankruptcy. When implemented effectively, injury and illness prevention programs can help workers and their families avoid these disruptive and sometimes calamitous impacts on their lives.

California has had an Illness, Injury Prevention Program requirement since the passing of SB198 in 1991. Five years after this requirement began; California had a net decrease in injuries and illnesses of 19 percent. Only 12 OSHA state plans have IIPP program mandates. Federal OSHA administered programs lack a written IIPP requirement and rely on citations under the General Duty Clause also called "5 (a)(1) citations." California's IIPP is spelled out in General Industry Section 3203 and Construction Section 1509. Citations under §3203 are the most frequent Cal-OSHA citations. Citations under §1509 are the third most cited standard behind heat illness prevention (§3395).

§3203 is being used increasingly as a General Duty Clause where an employer can be cited for an infraction, say for machine guarding (§3577), then also cited under §3203 (a) for failure to maintain a written IIPP and §3203(a)(7)(B): failure to train new hire. Such double citations can also create the basis for future repeat, serious or willful citations.

Based on the positive experience of employers with existing programs, Fed-OSHA believes that injury and illness prevention programs provide the foundation for breakthrough changes in the way employers identify and control hazards, leading to a significantly improved workplace health and safety environment. Adoption of an injury and illness prevention program will result in workers suffering fewer injuries, illnesses and fatalities. In addition, employers will improve their compliance with existing regulations, and will experience many of the financial benefits of a safer and healthier workplace including significant reductions in workers' compensation premiums.

The Authority will continue to provide updates to the members regarding the proposed I2P2 rule. If the Fed-OSHA rule, once adopted, is more restrictive than current California regulations, Cal-OSHA will need to update its current IIPP regulations to become compliant with Fed-OSHA.