Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

 Most years our firm sponsors an annual weekend retreat, a holiday party, and several other social activities for the Henderson Franklin team. These events are typically loosely structured and serve to improve upon cohesion and camaraderie among a group whose individuals often operate independently. Many employers do the same, engineering team-building activities which run the gamut from planning elaborate out-of-state trips to sponsoring company sports teams or holding company picnics.  All are good gestures, and each tends to serve the intended purpose of boosting morale.

What you must consider, however, is the potential for injury at these activities, and whether the employer may be liable for such an injury. Playing sports or cutting loose on a retreat can certainly be great for morale, but it can also provide ample opportunity for injury. This is particularly true when alcohol consumption is involved, as is often the case at these social activities.

If an event is considered to be within an employee's course of employment, it is also covered by workers' compensation. Accordingly, here are five planning considerations when evaluating potential workers' compensation liability at your next company-related social activity:

(1)       Is attendance voluntary?  If so, the likelihood of liability is lessened, whereas if attendance is required or the employee feels it is necessary or expected, then liability is almost assured.

(2)       How much control does the company exert?  The more the company participates in the event -- whether in payment, planning, supervising, or other means -- the greater the liability.

(3)     Does the company benefit from the event?  Publicity is the most common benefit derived, but regardless of what it is, the greater the benefit, the greater the company stands to be found liable for an injury incurred during its participation.

(4)    Is the event held on company property?  If the answer is yes, and particularly if held during normal business hours, the company is more likely to be found liable.

(5)    Is there a policy explaining who bears liability?  Although not determinative, having a written policy delegating responsibility of injury to the employee lessens its chance for company liability.  Like any company policy, if you have a signed acknowledgement of the policy from the employee before the event, your position is further strengthened.

So, the next time you plan a company social activity, keep these considerations in mind, if you wish to mitigate your potential for workers' compensation liability.

While you're at it, take the time to review with your employees your company's harassment policies, especially if alcohol will be consumed at the social activity. Specifically, make sure your employees know they are subject to the company harassment policies not only at the office, but also at company social functions, even if they are not on company grounds. Because as much as these great events can offer to the employee and the company, even a single alcohol-induced harassment claim can take it all away (and then some).

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One of the most searched topics on this blog has been OSHA, even though I haven't covered OSHA very often.  Since a lot of you are concerned about OSHA issues, however, I wanted to point out a new OSHA web tool the Department of Labor is offering. 

The OSHA Recordkeeping Advisor is designed to help employers report and record work-related injuries and illnesses covered by OSHA regulations.  It also helps employers determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.

You can access the Advisor by clicking here.   Hopefully it will at least be a good starting point for your OSHA questions.

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Generally, all employers with more than 10 employees must maintain the Occupational Safety and Health Administration's Log of Work-Related Injuries and Illnesses (Form 300) and Summary of Work-Related Injuries and Illnesses (Form 300A). 

There are limited exceptions for employers in certain "specific low hazard" industries; however, all employers, regardless of size or exemption, must report to OSHA any workplace incident that results in a fatality, or in the hospitalization of three or more employees.

The agency provides the OSHA Recordkeeping Handbook, which is "designed to answer recordkeeping questions raised by employers, employees, and members of the OSHA family who are familiar with the basic requirements of the rule but wish to obtain additional information on specific recordkeeping issues." The agency also provides a guide booklet for preparing and maintaining the required forms.

Covered employers must post their 2009 annual Summary of Work-Related Injuries and Illnesses (Form 300A) by February 1, 2010. This information must remain posted for three months, or until April 30, 2010 and the Form 300 and Form 300A can be downloaded.

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The Shelter for Abused Women & Children in Naples recently launched a new website intended to assist victims of domestic violence, a recent Southwest Florida News-Press article reports. The website includes a variety of information, including tips on how victims can stay safe at work. Tips suggest, among other things, that victims show a picture of the abuser to supervisors/security guards, have telephone calls screened, and ask security or a coworker to escort the victim to his or her car.

These are good tips employers can use to help employees who may fall victim to domestic violence. It also provides us an opportunity to remind larger employers of an additional requirement: if an employer has 50 or more employees it is obligated to do more than simply assist its employee-victim.

Florida Statute 741.313 requires an employer who employs 50+ employees to permit an employee to take up to three working days of leave in any 12-month period to deal with domestic violence-related issues. This applies not only in situations where the employee is the victim of domestic violence, but also when a member of the employee’s family or household is the victim of domestic violence.

The law only covers employees who have worked for the employer for at least three months. The employee can use the leave to handle various legal and/or medical issues, including seeking a protective injunction against the abuser; obtaining medical care, mental health counseling, or services from a victim services organization; and securing the employee’s home or seeking new housing to escape the abuse. An employer is prohibited from discharging, demoting, suspending, or discriminating against an employee in any way for his or her exercise of rights under the statute.

Domestic violence leave may be with or without pay, at the employer’s discretion. Before receiving leave under the statute, the employee must exhaust all of his or her annual or vacation leave, personal leave, and/or sick leave if available, unless the employer waives this requirement.

Employers with 50 or more employees should include a domestic violence related leave policy in their employee handbook. This policy should address, among other things, whether the leave is paid or unpaid, and whether an employee must exhaust other types of leave before using domestic violence related leave. Employers should also take steps to ensure that any information regarding the request for domestic violence leave is kept confidential. Finally, all employers should take care to comply with any local codes or ordinances that may apply.

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