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bed bugs other annoying issues in the workplace

Bed Bugs & Other Annoying Issues in the Workplace

The material provided herein is for informational purposes only and is not intended as legal advice or counsel.

slide2
Please help yourself to food and drinks

Please let us know if the roomtemperature is too hot or cold

Bathrooms are located past the reception desk on the right

Please turn OFF your cell phones

Please complete and returnsurveys at the end of the seminar

bed bugs

BED BUGS

Bell Environmental Services

Peter Di Eduardo

bed bugs5
Bed Bugs

Blood feeders

Common in U.S. before WWII

Comeback due to:

Changes in pest control practices

Increased international travel

Hitchhike in belongings

Not known to transmit diseases

bed bugs6
Bed Bugs

Hotels

Apartments & houses

Hospitals & nursing homes

Schools

Office buildings

And spreading to...

Modes of transportation

Movie theaters

bed bugs7
Bed Bugs

¼ inch

Reddish brown

Oval, flat

Sometimes confused with cockroaches or ticks

compare
Compare

German Cockroach

Nymph

Bed Bug

compare10
Compare

Bed Bug

Tick

bed bug bites
Bed Bug Bites

Appearance depends upon sensitivity of person

No diagnosis without specimen

bed bug habits
Bed Bug Habits

Flattened bodies make them good hiders

Prefer to hide in seams, cracks and crevices close to where people sleep or spend majority of their time

Hiding areas marked with fecal spots (dried blood)

prevention
Prevention?

There is no way to prevent bed bugs from infesting an area

In residences, encasements can prevent them from infesting mattresses & box springs

prevention early detection
Prevention  Early Detection

The best approach is to catch bed bugs at the early stage of an infestation

Know the Signs!

early detection
Early Detection

Be mindful of where you place your belongings

Inspect your belongings when you return from traveling

Inspect used furniture and other used items before bringing indoors

early detection27
Early Detection

Know the signs and contact

Bell Environmental Services

once you see them!

early detection28
Early Detection

Dog inspections

Quick & over 90% accurate

Ideal for multi-unit buildings or large office areas

Can limit treatment areas

Roscoe

preparation
Preparation

Prep List Residential vs. Corporate

What to do with clutter -- personal items, clothing, toys, books, etc.

Treatment success depends largely upon how well an area is prepared

preparation30
Preparation

Do not move infested items to uninfested areas unless sealed in plastic bags

Do not move employees (patients or tenants) to uninfested locations until they and their belongings have been inspected and dealt with properly

preparation31
Preparation

Normal wash cycle with hot water will kill all bed bug stages

Running clothes or items through the drier for at least five minutes at most settings is also as effective

treatment
Treatment

Cryonite®/ InstantFreeze

Dry ice “snow”

Pesticide free contact kill

No residues – immediate reoccupation!

Ideal for electronic equipment &

sensitive environments

developing bed bug protocol
Developing Bed Bug Protocol
  • Understand seriousness of issue and HR ramifications when suspicions of bedbugs arise or specimen is discovered
  • Involve: 1. Senior management

2. Human Resources

3. Communications

4. Facilities Management

developing bed bug protocol34
Developing Bed Bug Protocol
  • Understand Nature of the problem
    • Bed bugs are not inherent to any building
    • They’re Hitchhikers -- brought in with employees, their bags, purses, luggage, or on furniture
    • Rarely is it the company’s fault that bed bugs were introduced into a building (unless proper action was not taken to eliminate a known issue)
developing bed bug protocol35
Developing Bed Bug Protocol
  • Understand Nature of the problem
    • When 1 bed bug is sighted, acknowledge that there may be more
    • Bed bugs adjust their hours and feed on people when they are on site rather than their nocturnal schedule in a residence
developing bed bug protocol36
Developing Bed Bug Protocol
  • Proper Diagnosis and Treatment Plan
    • Consult with a licensed PCO
    • How large of an area to treat?
    • Using certified canines
    • Importance of non-pesticide approach
      • Bed bugs biological immunities to pesticides
      • Treatment limitations
      • Liability
      • Local Law 37 in NYC
slide39

Updated: Thu., Jan. 13, 2011

1 in 5 bugged by bedbugs

One in five Americans has either had an experience with bedbugs themselves or knows someone who has.

Seventy-eight percent of respondents were most concerned about infested hotels, while others said they were wary of picking them up at work.

"I was surprised just how pervasive the problem is," said Missy Henriksen, a vice president at the National Pest Management Association, which commissioned the online survey.

slide40

Bed Bugs Found at New Jersey Movie Theater

Update: Tuesday, 31 Aug 2010, 4:02 PM EDT

Published: Friday, 27 Aug 2010, 6:47 PM EDT

MYFOXNY.COM – A movie theater at the Monmouth Mall in Eatontown, N.J., has been reopened after being temporarily shut down because of bed bugs found inside three of its auditoriums.

Two AMC theaters in New York City also recently had bed bug problems: One in Times Square and one in Harlem.

slide41

Employees who work in Goldman [Sach]'s Jersey City, N.J., office tower have been moved from certain floors and ordered out of the building at times because exterminators have been in checking and spraying for bed bugs, said two separate sources at the firm. Neither source was comfortable being quoted by name, citing company policy.

a history of bed bugs
A History of Bed Bugs
  • Originally introduced to U.S. with the early colonists
  • Thought to be gone from the U.S. after 1960
  • Several theories to explain comeback:
    • Never really went away
    • Increase in international travel
    • Pest control treatments have become more targeted and less toxic
slide43
Office Memo: Bed Bugs Are Back

“They've moved out of the boudoir and into movie theaters, retail stores, libraries, firehouses, and inevitably, the workplace.”

threats
Threats
  • Damaged reputation
  • Lost Revenue
  • Decreased Productivity
  • Litigation
legal issues
Legal Issues
  • Occupational Health and Safety Administration (OSHA)
    • OSHA Regulations
    • Whistleblower status
  • Americans with Disabilities Act (ADA)
    • How Bed Bugs can trigger “disabilities”/accommodation issues
  • Family Medical Leave Act (FMLA)
    • When can someone claim FMLA leave for bedbugs?
  • Workers Comp/3rd Party Negligence
    • The Workers Comp loophole and innovative plaintiff attorneys
legal issues cont d
Legal Issues, Cont’d
  • Privacy and Defamation Issues
  • National Labor Relations Act – concerted & protected activity
policy concerns
Policy Concerns
  • Traveling Employees
  • In-home Service Employees
  • Company Uniforms
  • Company Vehicles
  • Leave Time for Extermination
  • Extermination Costs – Who pays?
the h in osha stands for health
The "H" in OSHA Stands for Health
  • OSHA regulates more than just safety hazards in the workplace.
  • OSHA was founded to assure workers of both safe and healthy working conditions.
  • The health issues that OSHA monitors often are overlooked.
  • Health issues include indoor air quality, sanitation, ergonomics, environment, workplace stress, and workplace violence
osha s general duty clause the catchall 29 u s c 654 5 a 1
OSHA’s General Duty Clause – “The Catchall”29 U.S.C. § 654, 5(a)(1)

“Each employer shall furnish to each of his employees, and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

osha s general environmental regulation 29 c f r 1910 141 a 5
OSHA’s General Environmental Regulation 29 C.F.R. 1910.141(a)(5)

“Vermin control. Every enclosed workplace shall be so constructed, equipped, and maintained, so far as reasonably practicable, as to prevent the entrance or harborage of rodents, insects, and other vermin. A continuing and effective extermination program shall be instituted where their presence is detected.”

osha s whistleblower clause 29 u s c 660
OSHA’s Whistleblower Clause29 U.S.C. §660
  • Section 11(c) of OSHA prohibits any person from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act.
  • Rights include complaining to OSHA and seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection.
when osha calls
When OSHA calls…
  • Don’t Panic
    • They can’t and won’t chase down every bedbug infestation
  • Have a comprehensive written plan of attack
    • Show that you are aware of the situation and are taking steps to combat the problem
  • Be sure to follow any OSHA recordkeeping requirements that may be applicable to you
    • Business establishments classified in a specific low hazard retail, service, finance, insurance or real estate industry are generally exempt
do your homework
Do Your homework!
  • Does your building code have a vermin provision that requires you to monitor bed bug issues?
  • Does your local health code require you to keep your building free of insects?
  • Do you have relevant policies, and if so, are you following it?
definition of disability under the ada
Definition of “Disability” Under the ADA
  • The basic definition of the term “disability”:
    • A physical or mental impairment that “substantially limits” one or more “major life activities” of such individual
    • A record of such impairment
    • Being regarded as having such an impairment
major life activities
Caring for oneself

Performing manual tasks

Seeing

Hearing

Eating

Communicating

Walking

Standing

Sleeping

Bending

Speaking

Breathing

Learning

Reading

Concentrating

Thinking

Lifting

Working

“Major Life Activities”
bedbugs sleeping and the ada
Bedbugs, Sleeping and the ADA
  • An impairment substantially limits an individual's ability to sleep if sleep is significantly restricted as compared to the average person
  • An individual would not be substantially limited in sleeping if she/he had some trouble getting to sleep or sometimes slept fitfully because of a mental impairment
  • The determination of whether a particular person is substantially limited in sleeping is very fact-specific
eeoc guidance the story so far
EEOC GuidanceThe Story So Far

When does an impairment substantially limit an individual's ability to sleep?

An impairment substantially limits an individual's ability to sleep if, due to the impairment, his/her sleep is significantly restricted as compared to the average person in the general population. These limitations must be long-term or potentially long-term as opposed to temporary to justify a finding of ADA disability.

For example, an individual who sleeps only a negligible amount without medication for many months, due to post-traumatic stress disorder, would be significantly restricted as compared to the average person in the general population and therefore would be substantially limited in sleeping. Similarly, an individual who for several months typically slept about two to three hours per night without medication, due to depression, also would be substantially limited in sleeping.

See EEOC Psychiatric Disabilities Guidance at question 11.

can bedbugs be a disability
Can Bedbugs be a Disability
  • Bedbugs themselves – Unlikely
  • Side Effects – Definitely
    • Lack of sleep
    • Depression/Anxiety
    • Delusory Parasitosis
      • Patients acquire a strong delusional belief that they are infested with parasites/insects/bugs
    • Delusory Cleptoparasitosis
      • A form of delusion of parasitosis where the sufferer believes the infestation is in their dwelling, rather than on or in their body
ada accommodations
ADA Accommodations
  • Leave of absences to treat disability
  • Hours of Work reassigned – sleeping issues
  • Other accommodations
    • Work at home if workplace infested
extermination issues
Extermination Issues
  • Does the extermination procedure (use of chemicals, etc.) comply with OSHA regulations?
    • Choose your professional carefully!
  • Will the extermination procedure trigger ADA-eligible illnesses with employees?
    • Allergies
    • Sick Building Syndrome
    • Chemical Sensitivity
additional issues
Additional Issues
  • Traveling Employees
  • Service Employees
  • Uniform Policies
  • Company Vehicles
when leave is a appropriate
When Leave is a Appropriate

Does Family Medical Leave Act Apply

    • To employees with bedbugs?
    • To employees seeking to avoid bedbugs?
  • Can you send an employee home if he or she reports having bedbugs at home?
employees with bedbugs
Employees with Bedbugs
  • Rachael Schaar v. Lehigh Valley Health Services Inc. – 3rd Circuit Case
  • An employee can prove a serious health condition with lay testimony
    • Third Circuit does not require an employee prove a serious health condition under the FMLA solely by a medical provider
    • Lay testimony can supplement medical evidence to establish a serious health condition under the FMLA
      • This will be important when dealing with employee claims of bedbugs
employees seeking leave to avoid getting bedbugs
Employees Seeking Leave to Avoid Getting Bedbugs
  • Department of Labor’s Guidance on H1N1 – November, 2009 - Instructive
    • The DOL noted that FMLA leave is NOT available to avoid exposure to the flu.  
    • The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 
salaried employees
Salaried Employees
  • Be careful when salaried employees take time off for bed bug remediation:
    • Cannot deduct pay for partial day absences
    • Cannot deduct pay for time off unless a bona fide plan or policy exists
    • Consult counsel – tricky issue
avoid the blame game
Avoid “the Blame Game”
  • Finding “the Source” is important, but beware of potential discrimination claims
    • Disparate Impact
    • Disparate Treatment
  • Avoid singling out employees and be aware of the potential for:
    • Discrimination Claims - Disparate treatment & impact
    • Harassment claims
      • The Scarlet “B”
    • Defamation claims
types of discrimination
Types of Discrimination
  • Disparate Treatment -- treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent.
  • Disparate Impact -- focuses on whether or not the employer has a policy or qualification that appears to apply to everyone the same but, in fact, has a significantly greater impact on members of a protected class
invasion of privacy defamation
Invasion of Privacy/Defamation

Prudent employers should also make sure that that they do not breach employees’ privacy

Prudent employers will limit discussion and disclosure of bed bugs

workers compensation
Workers Compensation
  • If an employee claims injury from bedbugs at the workplace, workers compensation should cover the employer
    • Note: Employees can sue their employers and their co-employees for intentional misconduct, for deliberately intentional acts and/or grossly negligent, reckless, willful or wanton misconduct. Bryan v. Jeffers, 103 N.J. Super 522 (App. Div. 1968).
third party negligence lawsuits
Third-Party Negligence Lawsuits
  • NORRISTOWN — A woman forced from her Norristown apartment after it became infested with bedbugs is suing a local retail store that leased her furniture that allegedly contained the insects.
  • Robin Boyd, who moved to Pottstown in June, filed a civil lawsuit against Aaron’s Sales & Lease, located at 714 Markley St., in Norristown. The woman leased a bed frame, headboard, dresser and nightstand from the store on Aug. 31, 2009, and after taking a one-hour nap that day noticed she had bug bites on her arm, according to the lawsuit.
  • The infestation caused her to miss work at a local nursing home, and she eventually lost the job. At some point, perhaps due to stress from the situation she began losing clumps of hair and took to wearing a wig. She began losing weight and was prescribed medication for depression. During the Christmas holiday, she isolated herself at her Norristown residence to prevent infesting her relatives’ homes.
first foremost
First & Foremost
  • This is an HR issue
    • Morale issues
    • Productivity issues
    • Legal issues
  • Education is critical
  • Facilities/maintenance is important but secondary
how to avoid litigation
How to Avoid Litigation

Have a Policy and Follow It

Documentation

Perform regular inspections and implement preventative measures

Provide education for staff

Have a remedial action plan in place now

do you have a bed bug policy
Do You Have a Bed Bug Policy?
  • Information about bed bug prevention
  • How to react when learning about the presence of bed bugs
    • Important to assist management in proper response
  • Clarification on leave policy in the event of infestation
    • Are there specific work-from-home policies & for whom is this an option?
handling complaints
Handling Complaints
  • Identify an expert/point person who can handle complaints compassionately and logically
  • Be open and resolution-oriented
  • React quickly and seek professional help
  • Document your procedure, including: complaint, inspection, confirmation, cleaning, treatment, future prevention, and follow up
don ts
Don’ts
  • Don’t try to silence employees about the problem, as this could lead to whistleblower claims or, in the Union context, NLRA violations
  • Don’t play the blame game, as this could trigger a defamation claim or a discrimination claim
  • Don’t “over react” -- Supervisors must be very careful in how they react to employees that may have brought bed bugs onto the premises to not foster panic
the scarlet b
The Scarlet B
  • Do Not Discriminate
  • Do Not Retaliate
  • Do Not Shun, Blame or Defame!
protected concerted activity
Protected & Concerted Activity
  • Employer cannot fire employees for engaging in protected, concerted acts (Section 7 Rights)
    • Concerted refusal to perform dangerous work (even if no union)
    • Discussion of work issues, at work or on a blog or anywhere
    • Partial strikes
  • Discussion of bed bugs in the workplace would be protected and concerted
to pay or not to pay
To Pay or Not to Pay
  • No Good Deed Goes Unpunished – what one gets, all must get!
  • Home Extermination Guidelines:
    • Must be a uniform rule/policy/practice
    • Written policy and guidelines suggested
    • Do Not Discriminate or Play Favorites
presented by chris elko

Employer Liability in the New Millennium: Facebook, Texting and FLSA Enforcement

Presented by:Chris Elko

a brave new world
A Brave, New World…
  • 400 Million active users
  • 3 Billion photos eachmonth
  • 60 Million status updates eachday!!!
facebook and twitter a primer
Facebook and Twitter – A Primer
  • Facebook
    • Status Updates
    • Walls
    • Messages
  • Twitter
    • Status Updates
      • Automatic Soundbite
so what
So What?
  • Liability
  • Marketing and Promotion
  • Policy
    • What are you doing?
update status here
Update Status Here:

“I can’t believe my ______ assistant messed up ANOTHER Settlement Agreement! She isn’t even literate!

hostile work environment and title vii
Hostile Work Environment and Title VII
  • Hostile Work Environment
    • One severe act of harassment or several minor acts of harassment
  • Are your employees “networked”
    • Supervisors must be careful
      • Cyber-flirting
      • A Facebook post lasts forever
  • Title VII
morale
Morale
  • Gossip
    • A “connected” workforce can result in a clogged HR Department
  • When an employee leaves…
    • Defamation?
      • Damages
    • Non-Solicit
confidentiality
Confidentiality
  • Are you waiving/violating a privilege?
    • Attorney client
    • Doctor patient
  • HIPAA
    • Nurses fired for facebook postings
other important issues
Doe v. XYC Corp., (2005)

3rd Party Liability when an Employer is on notice of pornographic use

Policies must be enforced!

FTC and Consumer Fraud issues

Make sure your employees are not impacting the credibility of your brand!

Other Important Issues
discovery issues
Discovery Issues
  • No special privacy right to social media
    • PA: McMillen v. Hummingbird Speedway, Inc.
      • No expectation of privacy for Facebook or MySpace accounts
    • NY: Romano v. Steelcase Inc.
      • “Think before you speak, or in this case, before you type.”
employee rights
Employee Rights
  • Whistleblowers
    • Cannot gag employees complaining about OSHA violations or alleged Title VII violations
  • Is the communication unrelated to work
    • NY protects off-duty activity
employee rights in the labor context
Employee Rights in the Labor Context
  • Labor is focusing on social media as a means of “spreading the word”
    • Dues money is used to sponser Facebook pages
  • Is the communication considered concerted activity?
    • An unlawful policy “prohibited employees from making disparaging remarks when discussing the company or supervisors.”
    • An unlawful policy “prohibited employees from depicting the company in any way over the internet without company permission.”
social media policy
Social Media Policy
  • Be inclusive – Make sure that your policy includes all social networking websites, blogs and “wikis”, used professionally or personally
  • State that the Employee Code of Conduct applies to social media commentary involving the Company or its employees
  • Be clear that employees may not disclose confidential or proprietary information online
  • Reserve your right to request that certain posts be deleted if they include inappropriate comments relative to the Employer
slide98

New OSHA

“Distracted Driving Initiative”

secretary of labor hilda l solis
Secretary of Labor Hilda L. Solis
  • "It is imperative that employers eliminate financial and other incentives that encourage workers to text while driving."
  • "It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality."
osha violation the rule
OSHA Violation – The Rule

“When OSHA receives a credible complaint that an employer requires texting while driving or…organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice.”

http://www.osha.gov/distracted-driving/index.html

osha violations the rule expanded
OSHA Violations – The Rule – Expanded
  • Create a policy
    • “It is your responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.”
  • Do not incentivize
    • “Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.”
policy advice
Policy Advice
  • Review the OSHA Distracted Driving Website
  • Review the Department of Transportation’s Distracted Driving Website
  • Recognize October’s “Drive Safely Work Week”
  • Consider whether your employees are incentivized to text while driving
bad weather the office is closed
Bad WeatherThe Office is Closed
  • Exempt (Salaried) Employees
    • Cannot deduct pay for quality/quantity of work
      • Measured on a weekly basis
    • Accrued time off or vacation time may be deducted
      • Practical issues arise with December closures
      • Salary must still be paid
      • Morale?
  • Non-Exempt Hourly Employees
    • No requirement to pay for hours that would have been worked but-for inclement weather
bad weather the office is open
Bad WeatherThe Office is Open
  • Exempt Employees
    • The employee is not “ready, willing and able” to work, even if it is beyond his control
    • The Employer may deduct one full day pay
    • No Partial Day Pay!
  • Non-Exempt Hourly Employees
    • No requirement to pay
    • May require use of accrued time off
bad weather policy considerations
Bad WeatherPolicy Considerations
  • Who makes the decision to close and how it is communicated
  • Can employees bring children to work when school is closed
  • Define work-from-home options when available
  • Determine what policy governs when an employee cannot get to work when the office is open
  • Determine whether non-exempt employees may “make-up” time within the same work week
dol aba attorney referral program
DOL/ABA Attorney Referral Program
  • Initiative began in December of 2010
  • Instituted by Vice President Joe Biden and supported by the American Bar Association
  • Goal is to provide expanded assistance to FLSA/FMLA claimants and alleviate the DOL workload
dol aba attorney referral program109
DOL/ABA Attorney Referral Program
  • Old System
    • 2010:
      • The DOL added 350 new investigators
      • The DOL received 40,000 claims in 2010
        • 25,000 of those claims requested assistance with minimum wage, overtime, or family medical leave claims
    • 16(b) Letter
      • Violation occurred
      • “Not suitable for Court action”
dol aba attorney referral program110
DOL/ABA Attorney Referral Program
  • New System
    • When claimant’s FLSA or FMLA claim is rejected by the DOL
      • Claimant provided with toll-free number to reach a FLSA attorney
      • Claimant decides whether to pursue independent cause of action against the employer
dol aba attorney referral program111
DOL/ABA Attorney Referral Program
  • When will a claimant be referred to a private attorney?
    • Complaint Intake
    • Complaint Review
      • Before investigation
    • After the DOL attempts to reconcile the issue
    • At the conclusion of the DOL investigation
      • Complainant will receive the entire investigation file, including documents, findings and amount of back-pay owed by the employer
questions answers session

Questions & Answers Session

Thank you for coming!