The importance of safety goggles

I'm not the kind of OSHA expert my friend and colleague Leonard I. Pataki is (who has been known to bring the Code of Federal Regulations on business trips to read "just for fun."  As he says, "You wouldn't believe the stuff the government has done!"), but I have tried my share of OSHA matters.  Now, I'll be the first to say that I find a lot of the administrative hullabulloo to be counter-productive to the purpose of safety in the workplace.  The penalties for employers can be strangling, along with the invasiveness and seeming eagerness of the government to prosecute, rather than educate.

But the reality is that the Occupational Safety and Health Act, like all of our employment laws, was created for valid and noble purposes.  Although some of the safety rules seem absurd (the almost-enacted encyclopedic ergonomic standards), most do serve the purpose of protecting workers as much as possible.  

In that regard, I am here to offer a personal testimonial to the importance of safety goggles.  Two weeks ago, while I was on the Broken Arrow Expressway, some piece of steel weighing about 3-4 pounds flew through my windhsield, long-end missile-style, and hit me in my left eye.  I should probably be dead, or vegetabled, or at least have lost my eye.  A bit more in either direction, and that would've been true.  But even hitting me as it did, from my brow-bone downward in diagonal direction toward my cheek, I should probably be dead.  

Why am I not?  Most likely the sunglasses I was wearing.  You can see in the two pictures below precisely how the steel bar fits into my sunglasses neatly like a puzzle piece.  When it hit me, it hit my sunglasses, which bent and absorbed the energy, causing the sunglasses to shatter into my face, but protecting my eye from being impaled.  

  

I suffered some fairly substantial injuries, but they are far less than what they could have been if I hadn't been wearing those glasses.   

To employers: don't let your employees get by without following those safety goggle rules.  To employees: it is important to wear those goggles.  Always.   My friend who was in the car with me when I was hit jokingly got me a pair of OSHA-approved sunglasses for the next time I went out (and a welders helmet in case I still didn't feel safe), but--no joke--I'm wearing them.  I don't have to get hit in the head twice to learn my lesson.   And I'll be darned if somebody hasn't figured out how to make the things somewhat fashionable (mine are a lovely color of burnt umber), not to mention the fact that they currently cover up my scars.  Here I am sporting my OSHA-approved eyewear.  Perhaps I'll get a modeling gig for the Industrial Safety Review.

Res Ipsa Loquitur*

An update to the Dov Charney/American Apparel case that I discussed earlier.   I read this morning that it's going to trial starting today, as the arbitration fell apart.  So, apparently all of the messy details will be coming out for the public.  Not that Mr. Charney has seemed at all embarrassed by any of the facts that have come out so far.

I have attached a picture of Mr. Charney.  The guy who thought he was the perfect model for American Apparel underwear.

Seriously.  

*A Latin phrase meaning, "The thing speaks for itself." 

Hot people in uniform!

Just kidding.  I wanted to keep your attention going.  Every post I write can't be about naked CEOs or sexual harassment or have pictures of hot and almost undressed models, or this would turn into another kind of blog entirely.  

This one is on a more serious matter: the rights of men and women in the armed services and their close relatives to leave under the Family and Medical Leave Act.  

Recently, President Bush signed into law the National Defense Authorization Act, which amended key portions of the FMLA. Specifically, this amendment requires employers to grant the following leave:

• 12 weeks of leave to employees who have a a spouse, parent, or child who is on or has been called to active duty in the Armed forces for a "qualifying exigency;"  and
•  up to 26 weeks of leave to employees who are the spouse, parent, child or "next of kin" of a servicemember who is undergoing medical treatment, recuperation, therapy, is on outpatient status, or otherwise on a temporary disability retired list, or a serious injury or illness, in order to care for the servicemember.

As a reminder to you out there, the FMLA only covers employers with 50 or more employees in a 75-mile area.  For those of you covered by the FMLA, this is a fairly significant change.  Before this amendment, an employee who had an injured loved one who is a servicemember would only be entitled to 12 weeks of leave, and only for a loved one who is a spouse, parent, or child.  Now, 26 weeks of leave are required, not only for spouses, parents, or children, but also for "next of kin," which is defined as the nearest blood relative.

The other expansion is the 12 weeks of leave required for spouses, children, or parents of servicemembers called to active duty for a "qualifying exigency."  It's not clear at this point what a "qualifying exigency" is, as the Secretary of Labor hasn't yet enacted a regulation defining what this is.  

It's also not clear when these provisions go (or went) into effect, for reasons that are too boring to explain here.  But the President signed the law into effect on January 28, 2008, and, at a minimum, you should be prepared to permit the 26 weeks of leave required for employees with family members who have been injured or are ill and who have been on active duty.    We will be waiting for the Department of Labor to help us out on the "qualifying exigencies" that might entitle employees to the other 12 weeks of leave.  

Incidentally, this doesn't mean that family members of people in the armed services are entitled to 38 total weeks of leave; the law only requires a total of 26 in any 12-month period, either under the 26-week leave for an illness or in combination with the "qualifying exigency" provision.  

This is important news, if not particularly sexy.  I'll look for reasons to post pictures of scantily-clad people for the next one (and to all you guys out there to whom I've spoken about the last post: You're welcome.).

But it works at the Playboy Mansion...

I heard about this on NPR on the way home from work today:  "Pantsless CEO Faces Harassment Charges."    American Apparel CEO Dov Charney was sued for sexual harassment by a former employee because he walked around in his underwear and sometimes even wore...erm..."garments" that barely covered his genitalia.  This appears to be admitted by him. 

Also apparently admitted by him is the use of "salty" language around the office.  "You talk to any man who works in entertainment or fashion, and if he tells you he has not used the word 'slut'...I think he's lying." 

Now, dear readers, normally at this time, I would tell a client to get out the checkbook and leave a blank with a lot of zeros at the end.  But strangely enough, the matter hasn't been buried in a quickie settlement with a hefty confidentiality clause.

Get this: the CEO claims it was all part of his job.  He claims that, at 5'10'' and 155 lbs, he is a perfect model, and he was only testing out their underwear.  He is, after all, very proud of his...umm...product.  

And American Apparel is widely known for its sexually charged ads.  Shouldn't someone working there expect to be exposed to people, well, exposing themselves?  

At last report I found, the matter is headed to arbitration, which means it will be decided by an independent judge, not a public jury trial. 

Don't let this case embolden all of you out there who have been secretly wishing you could disrobe at the office.  With a few exceptions (strip clubs, the Playboy Mansion, porn set, you get the idea), clothing is not optional at most workplaces. Plus, very few of us (including the CEO in this case) are good-looking enough to get away with it.

npr story

la times article

On cocktail parties, taxes, dating, and independent contractors

When I was in law school, one of my favorite professors used to tell us that the only real beneficial use for a lot of the information we were having to ingest was that it would make us popular at cocktail parties.  Meaning, that from thence forward, we would forever be approached by intoxicated people at cocktail parties looking for free legal advice (and to hear us overuse words like "thence") about whatever legal issues they had on their minds.

My professor was dead on, as he was about a lot of things.  However, he was viewing this through the lens of a guy.  One thing he omitted to say (probably because he didn't know) was that admitting you're a lawyer at cocktail parties is hell on your dating life if you're a girl.  

[Scene.  Cocktail party.  Hot chick lawyer with cute boy. ]

...witty repartée...laughter...flipping of hair....

Cute boy: "So, what do you do?" 

HCL: [inward cringe.  Thoughts about claiming to be an exotic dancer]... "I'm a lawyer."

Cute boy: "...Ohhhh." 

[awkward silence; nodding of heads]

There's a whole Sex and the City episode about this, actually.  So, I've stopped telling people that.  

But I do like giving out free legal advice (there are very few things lawyers like to do more than talk), so I have to find another outlet for this other than a cocktail party.  So, the blog.

At any rate, I have had several inquiries of late from employers (seeing as we've ended the year and folks are examining last year's bottom line) about whether they can re-classify employees as independent contractors so as to avoid the expenses associated with taxes, workers compensation coverage, etc.

However, an employer cannot make someone an independent contractor just  by saying that it is so.  A worker is either an employee or a contractor as a matter of law, not as a matter of choice, depending upon several factors.  Most of the factors center around the amount of control the business exerts over the workers. Here are some of the factors considered:

(1) Whether the work requires a high level of skill or expertise.  

(2) Who furnishes the tools, materials and equipment used by the worker.  

(3) Whether the work is performed on the premises of the business.

(4) Whether the business sets the hours of work and length of the job.

(5)  Whether the worker is paid by the hour/salary or by the completion of a particular task.

(6) Whether the work is part of the regular business of the company.

(7) Whether the worker can perform work for other businesses or is dependent upon one company for income.

(8) What the worker and the business believe their relationship to be.

Using an example, if you hire someone to paint your house, that person likely is hired only for that job, brings his brushes and ladders, sets hours and completion of work, is paid on a per-job basis, and is performing work for other homeowners.  That's an independent contractor, and you don't have to withhold taxes or get workers compensation insurance or follow wage and hour laws.  

If, on the other hand, you have a maintenance man that works on your grounds and only your grounds and paints your house along with other jobs, you make entirely too much money. 

I KID.  Seriously, though, that person is more likely an employee because he performs most of his work for you, works with tools you provide, has his work and hours controlled by you, and cannot easily contract out his work for other people.

Ok.  That's all I've got for now, and it's cocktail hour.  Salut! until next time.

p.s.  Oh, and a prize to the person who comes up with the coolest profession for me to claim as my own at parties.  And by "coolest," I mean "won't send cute boys running." 

 

The Inaugural Blog-ural.

Due to overwhelming demand, I am finally getting around to posting my first ever blog from my own website, www.akhlaw.com. I know you all are clamoring for some free employment law advice, which I will be posting soon; however, first things first. Heaps of thanks to my web designer and friend, Brian Franklin, of DoubleShot Coffee Company. He set up and designed the fancy schmancy site that I can call my web-home, took the pictures, and made sure I look as professional as I'm capable. He's designed lots of others, which you should check out:

www.doubleshotcoffee.com
www.coffeeilluminati.com
www.doubleshotduathlon.com
www.downtownplazatulsa.com
www.carousellion.com

So, thanks, Brian.

More to come shortly, of an entertaining legal variety. (That's right. Entertaining AND legal.) So check back soon.