It's Not Who You Are — It's Who You Married

While federal law does not protect employees from discrimination based on marital status, marital status discrimination is protected under many state human rights statutes. Most states limit the protection to the status of being married. That is, it is unlawful to discriminate against an employee because the employee is married, because the employee is single, or because the employee is divorced.

A growing minority of states have extended marital status discrimination to cover employees who face adverse employment actions because of the identity of their spouse. The Minnesota Court of Appeals has recently done so. In Taylor v. LSI Corporation of America, a long-term employee married the company's president. Due to alleged poor financial performance by the company, the president was asked to resign. The company then fired the former president's wife, and she sued. The court ruled that the "clear terms" of the Minnesota Human Rights Act protected not only the status of being married but also employment decisions based on the identity or situation of the employee's spouse.

Marital status discrimination protection based on the identities or situations of spouses might arise in a number of circumstances. Not only might it arise when an employer that employs a married couple terminates one spouse and is concerned about the adverse morale impact on the employed spouse, but it can arise when an employee's spouse is not an employee. For example, an employer might believe that it is an inherent conflict of interest when a spouse is employed by a competitor. It might also arise when the spouse is unsavory (i.e., a criminal) or otherwise objectionable.

Employers also should review state marital status laws when preparing policies regulating nepotism.

OSHA Inspections and Citations Are on the Increase — Are You Ready?

So far in fiscal 2010, OSHA is on track to significantly outpace its enforcement performance in previous years. The agency is on pace to conduct over 42,000 inspections, up from the previous high of 39,000 inspections in the 2009 fiscal year.

The total amount of violations cited by OSHA also is significantly up, and is on pace to exceed 100,000 in 2010. The previous record was 87,663, set in fiscal 2009. More than 80 percent of violations cited in fiscal 2010 were serious, willful, or repeat, which also is the highest for those types of violations in the agency's history. Furthermore, the amount of cases with penalties exceeding $100,000.00 is up nearly 25 percent from fiscal 2009. Also noteworthy is the increased number of seven-figure fines in the first part of fiscal 2010. According to OSHA press releases, there have been three proposed fines that exceeded $1 million, including a record $87.4 million to BP Products North America Inc. in October 2009.

Despite the increase in penalty amounts noted above, OSHA recently announced that its penalties were too low and that changes to its penalty calculation system were being made. The average penalty for a serious violation is expected to increase from approximately $1,000 to between $3,000 and $4,000. Also in the background is the Protecting America's Workers Act (H.R. 2067), which is currently being debated in the House of Representatives. The Act, if enacted, would stiffen both civil and criminal penalties for serious workplace safety violations.

Further bad news for employers is that the rate of in-compliance inspections is at 19 percent, down from 25 percent in fiscal 2009.

All this news makes it clear that employers need to be prepared for an OSHA inspection; otherwise, the consequences may be severe. What follows are some practical tips to consider when preparing for and handling an OSHA inspection:

  1. Managers most likely to encounter an OSHA compliance officer are those that work at construction sites or production facilities, not those at the company's corporate headquarters. Therefore, ensure that training regarding how to handle an OSHA inspection reaches the proper employees.
  2. Conduct self-audits of company records. OSHA announced that records would be a focus of future inspections.
  3. Consider conducting your own testing alongside OSHA to ensure accurate results by the OSHA compliance officer.
  4. Ask whether the compliance officer has a warrant. You have a right to require a warrant.
  5. Never allow a compliance officer to walk unaccompanied around a facility.
  6. If possible, set up the compliance officer in an isolated office within the facility so that you may bring requested documents to him or her instead of taking the officer to where the documents are located.
  7. Get a copy of the compliance officer's credentials.
  8. Ask whether the inspection is based on a program or complaint. If it is based on a complaint, get a copy of the complaint or information regarding the specifics of the complaint.
  9. Attempt to reach an agreement with the compliance officer and/or the area director that the inspection will be limited to a specific area or alleged violation. If no agreement can be reached, then consider forcing OSHA to get a warrant. Remember, the scope of a warrant issued for an inspection based on a complaint will generally be limited in this manner anyway.
  10. Forcing the compliance officer to get a warrant or consult with his or her area director before conducting an inspection will allow you additional time to review the circumstances, to review the facility and site, and to address the alleged violations if they exist.
  11. Experience has proven that forcing OSHA to get a warrant generally does not cause harm, and often prevents it.
  12. Self-inspections or internal audits are generally "fair game." However, remember that if there is an attorney involved, there is an argument that some, or maybe all, material may be protected as attorney work product. Subsequent results and corrections, however, should be made discoverable as most OSHA Act regulations require regular self-inspection and auditing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.