The Federal Aviation Administration Modernization and Reform Act of 2012 required the Federal Aviation Administration (FAA) to permit the Occupational Safety and Health Administration (OSHA) to apply various safety standards to aircraft cabin crewmembers. OSHA and the FAA will come to terms on OSHA’s enforcement procedures, with the intent to ensure that OSHA activity will not interfere with aviation safety
Under the FAA’s final policy, OSHA’s rules on hazardous chemicals, blood-borne pathogens, noise levels, record-keeping, OSHA access to records, and anti-discrimination will apply to cabin crew. The FAA final policy statement will become effective thirty days after it is officially published. Then, OSHA will seek feedback on the new safety requirements. Assuming OSHA does not find any reason to delay, it will begin enforcement activity a few months thereafter.
Air Hazard Alert For Oil and Gas Operators
The National Institute for Occupational Safety and Health (NIOSH) is the federal agency that conducts research on worker safety and makes recommendations to other organizations such as the Occupational Safety and Health Administration (OSHA). When NIOSH finds workplace hazards, OSHA makes and enforces regulations to govern worker safety standards.
Recently, NIOSH and OSHA teamed up to take air samples from five different “fracing” sites. For those not in the energy industry, “fracing” is a way to improve the productivity of oil and gas wells by hydraulically breaking up rock formations very deep underground: hydraulic fracturing. The agencies found impermissibly high levels of respirable crystalline silica. That is, they found particles of sand so small that they can be inhaled and become stuck in the lungs. Respirable crystalline silica can cause a disease called silicosis. It has also been tied to cancer and a number of other diseases.
Consequently, OSHA released a hazard alert. Businesses engaged in fracing operations should read the alert, found here, and consider taking steps to monitor and/or control respirable crystalline silica levels around their worksites.
One form of employment discrimination is called “Cat’s paw,” after an old fable. Understanding the fable will make the law more clear. Although the cat’s paw story has a distant and uncertain past, it is often credited to Jean de La Fontaine’s seventeenth century writing. In the story, Bertrand monkey promised Raton cat a share of the food if he would pull roasting chestnuts from a fire. Each time Raton cat pulled a chestnut, Bertrand monkey ate it. Ultimately, the pair was discovered by a house servant, so they fled. Consequently, Raton cat received nothing for his efforts but burned paws. Thus, the phrase â€œcat’s pawâ€ refers to one who has been duped into furthering someone else’s interests.
The “cat’s paw” theory of employment discrimination may apply where an HR department terminates employment for an apparently legal reason, but acted in reliance on information supplied by a supervisor with an illegally discriminatory purpose. For example, the United States Supreme Court recently found an employer liable for illegal discrimination where its human resources department terminated employment based on poor performance. The problem was that the performance information supplied to human resources came from supervisors who wanted to discriminate against the employee on the basis of his military service. Thus, the apparently valid decision of the human resources department was found to be illegal because the supervisors used the HR department as a cat’s paw to get rid of the soldier for illgal reasons. Courts will not allow employers to avoid discrimination lawsuits where supervisors manipulate HR departments.
Businesses have attempted to avoid cat’s paw liability by basing employment decisions on input from unbiased third parties. Now, since a recent Supreme Court decision, the employer is still on the hook if a supervisor uses the third party consultant as a cat’s paw to remotely control the HR department. In other words, it is likely the case that once one advisor in a chain of advisors is a cat’s paw, all the rest down the line are also cats’ paws, and the employer remains liable.
In the actual case, the City of Lubbock faced a claim of retaliation involving a promotion decision. One of the employees seeking promotion, Martha Ellerbrook, had been involved in her husband’s prior discrimination complaint against the city. As luck would have it, the target of Mr. Ellerbrook’s discrimination complaint was the decision making manager in Mrs. Ellerbrook’s bid for promotion. Concerned about the apparent conflict of interest, the City hired an outside consultant to help make the promotion decision.
The consultant relied on an applicant scoring matrix crafted by the supervisor. Based on that matrix, the consultant recommended someone other than Mrs. Ellerbrook. A federal appeals court determined that Mrs. Ellerbrook did not have to prove that she was more qualified than the other applicants. The Court found there was sufficient evidence for a jury to believe that the scoring matrix was manipulated to harm her chances while benefitting other candidates. In other words, the Court found it believable that the supervisor duped the consultant into doing his dirty work. Thus, the cat’s paw theory may apply even where the supervisor’s recommendations go through a third party. This case adds to the growing body of court decisions suggesting that employers should require human resources departments to independently verify information used to reach employment decisions.
Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.