248-409-1900 dburke@mi-worklaw.com

First Kalamazoo; Now Hesston, Kansas

By: Dan Cohen – 2/26/16

I just wonder if there will ever be a day again that I can turn on the news and not hear about an act of terrorism or someone randomly shooting innocent people. The latest victims worked at Excel Industries, which manufactures lawn care equipment in its Hesston, Kansas factory. Yesterday, at about 5:00 p.m., Cedric Ford, returned to Excel’s factory, where approximately 150 of his co-workers were working, and went on a shooting rampage shooting literally anyone who came into his sight. In all, four employees (including Ford) were killed and

another 14 injured (10 critically).

Ford has been described as a “mellow guy,” and “someone I could talk to about anything.” One co-worker indicated that, “never in a million years” would he think Ford was capable of doing something like this. The authorities, however, have indicated that “there [were] some things that triggered this particular individual.” In the coming days, I am sure there will be a whole lot more to this horrific story and what “triggering” factors may have caused Ford to act out as he did. However, it is scary to think that some of Ford’s co-workers did not think he was capable of such violence. Usually, it is just the opposite.

From 2006 to 2010, the last year for which final statistics are available, an average of 551 workers died each year in work-related homicides, according to the Bureau of Labor Statistics. Nearly 20% of those were multiple-fatality homicides in which two or more workers were killed. These numbers compare to the numbers in the 1990s, when I first started counseling employers on workplace violence prevention strategies. It will be interesting to know what risk factors were present and whether they were known to anyone, but certainly, at this point, nobody has come forward with information that Ford was perceived to be a threat, that others were scared of him or they were not surprised.

Employers should be watching this case as it unfolds because of the implications it may have on keeping their own workplaces safe. Often, there are warning signs which exist and which can be managed with proper threat assessment and prevention strategies. Do not misunderstand me: I am not suggesting that Excel missed any opportunities here to detect a problem and prevent the shootings. It is just too early to even raise that question. However, as facts are released, those of us who have experience with threat assessment and workplace violence prevention may be able to offer some constructive ideas for other employers. I don’t like to Monday morning quarterback such incidents, but the reality is that case studies of shootings help employers devise policies, plans and training protocols that can be used to increase their chances of never having to face such a tragedy.

While not all inclusive, some or the recognized risk factors include:

  •  History of violence, including prior threats, incarceration for violence, acts against animals
  • Mental Illness, including paranoia, depression and suicidal tendencies
  • Making or referencing lists or expressing a plan
  • Recent loss at work (discharge, denial of grievance, etc)
  • Lack of support system
  • Financial desperation or feeling of hopelessness
  • Extreme interest in or obsession with weapons and others shootings
  • Excessive discussions about weapons
  • Empathy with other shooters
  • Impulse control problems and willingness to exceed boundaries
  • Others expressing worry, nervousness about the individual

For a complete list of risk factors, please visit our website at www.mi-worklaw.com, and click on resources.



Whistleblower Protection Act Does Not Protect Reports of Suspected Future Violations

Whistleblower Protection Act Does Not Protect Reports of Suspected Future Violations

By:  Rob Dare – 2/11/16

          Plaintiff, sued her former employer, a women’s shelter, its executive director and operations manager, claiming wrongful termination in violation of Michigan’s Whistleblower Protection Act (“WPA”). Plaintiff claimed that the Executive Director told her that she intended to use grant money to purchase a stove for her daughter. Further, according to plaintiff, the Executive Director implied that plaintiff should document the transaction in the name of a specific client to hide the unauthorized purchase. The Executive Director denied using the grant funds for such a purpose, or ever discussing such a purchase with plaintiff.

          Plaintiff testified that she contacted two supervisors about Long’s alleged plan, and after no action was taken, Plaintiff reported the same information to the operations manager. In her deposition, plaintiff stated that at the time of her conversation with the operations manager, she believed the Executive Director had already purchased the stove with the funds, but she did not convey that belief to the operations manager. The operations manager contended that she had no recollection of this discussion with plaintiff.

          A few weeks later, plaintiff was terminated. The stated reason was detailed in a termination letter: plaintiff’s allegedly harassing and intimidating behavior toward a fellow employee in violation of defendants’ employment policies in a January 2012 incident. Plaintiff alleged that she was terminated for reporting her conversation.

          After conflicting conclusions from the trial court and Michigan Court of Appeals, a unanimous Michigan Supreme reversed the Court of Appeals and held that plaintiff’s actions did not constitute protected activity. The pertinent provision of the WPA provides that “an employer shall not discharge, threaten, or otherwise discriminate against an employee . . . because the employee . . . reports or is about to report . . . a violation or a suspected violation of a law.” The Court explained that the reference to “a violation or a suspected violation of law” plainly “envisions an act or conduct that has actually occurred or is ongoing.” Further, the Court noted, the provision “contains no language indicating that future, planned, or anticipated acts amounting to a violation or a suspected violation of a law are included in the scope of the WPA.” Therefore, the court concluded, an employee’s stated intention to commit an act amounting to a violation of a law in the future does not constitute “a violation or a suspected violation of the law” under the WPA.

          However, since the WPA did not apply, it did not pre-empt other possible claims and the Supreme Court remanded the case to the Court of Appeals to consider plaintiff’s claim that the discharge violated public policy. We will of course update this blog when the Court of Appeals decides that issue.



EEOC to Seek Equal Pay Data in 2017

EEOC to Seek Equal Pay Data in 2017

 By: Dan Cohen – 2/4/16

 If there was ever any doubt that the feds still have a bone to pick with employers, that doubt was easily put to rest last week when the EEOC announced its proposal to revise the annual Employer Information Report (EEO-1) to include pay data. Currently, employers with more than 100 employees, and federal contractors or subcontractors with more than 50 employees are required to provide the EEOC information about employee race/ethnicity and sex in each of 10 specific job categories.   The EEOC proposal would also require employers with 100 employees to report pay ranges based upon W-2 income as well as hours worked for all employees by race/ethnicity and sex beginning on or before September 30, 2017.

If your business is not required to file the EEO-1 now, it would not be required to file the EEO-1 with pay data. Under this proposal:

  • Federal contractors with 49 or fewer employees would not file the EEO-1. This is current practice.
  • Federal contractors with 50-99 employees would not report pay data. But they would report ethnicity, race, and sex by job category, like they do now.
  • Private employers with 99 or fewer employees that are not federal contractors would not file the EEO-1 at all. This is the same rule that applies now.

Public comments are due by April 1, 2016. Once the public comment period expires, the EEOC will review the responses. A hearing will be required before anything becomes final. Let’s hope common sense prevails and the feds adjust their proposal or scrap it altogether.

The EEOC has expressly stated that “collecting pay data is a significant step forward in addressing discriminatory pay practices.” Of course, the proposed reporting does not take into account length of service, employee responsibility education, experience, and other legitimate reasons for pay differentials. The EEOC Proposal also focuses on W-2 income rather than actual pay rates, which is the wrong data for ferreting out discriminatory pay practices.  For example, employees with greater productivity or more sales will typically be paid more than others in the same position.  This obviously does not establish an equal pay violation, but the EEOC proposal would lead to suspicion and possibly a costly investigation.  Perhaps the biggest problem with the proposal is the pay ranges themselves, which are based upon the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics Survey.  Use of these 12 pay ranges will group employees together even though they are not similarly situated.  For example, the seventh pay band of $62,920 – $80,079 will tend to capture managers, sales representatives, administrators and even some professionals.  Consequently, employers will be defending their compensation systems at significant cost when the feds use this meaningless data in their targeted witch hunts.

Public comments are due by April 1, 2016. Once the public comment period expires, the EEOC will review the responses.  A hearing will be required before anything becomes final. Let’s hope common sense prevails and the feds adjust their proposal or scrap it altogether.