Players sue NFL for brain injuries: where is OSHA?

Posted on July 27, 2011 by Sharmil McKee

The player lockout is not the only issue that the NFL must deal with this week. Last week, 75 former NFL players sued the organization claiming that the NFL intentionally concealed and failed to warn the players about potential brain injuries resulting from game-related concussions. The players are suing for fraud, negligence, and failure to warn. The players claim that the NFL knew about the link between game-playing and brain injuries since 1920′s but concealed this knowledge until June 2010.

This story leads me to ask, if a football field poses such a dangerous workplace, as suggested by this lawsuit, then why hasn’t OSHA issued a citation? In 2006, OSHA
answered that question by stating that injuries to professional players are not disproportionately high.

While an OSHA violation is not essential to proving the players’ proposition, it would help establish that the league breached its duty to warn about the dangerous work environment.

Of course, reader, you are asking does OSHA protect professional football players? Yes, assuming that the agency views the player as an employee as opposed to an independent contractor.

The Occupational Safety and Health Administration was created by congress in 1979 to help employers reduce workplace injuries, illness, and death. The
OSH Act covers private employers and their employees either directly through federal OSHA or through an OSHA-approved state program. State programs must meet or exceed federal OSHA standards for workplace safety and health. OSHA does not regulate the self-employed.

Employers who do not comply with the OSH Act are subject to civil and criminal penalties until they cure the dangerous condition. OSHA may impose civil penalties of up to $70,000.00. An employer who is convicted in a criminal proceedings of a willful violation may face up to six months imprisonment and fines up to $250,000.00 (or $500,000.00 if the employer is a corporation). (See 29 U.S.C. § 666.) An OSHA citation does not create a private right to sue or bring a cause of action against the employer. (See Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir. 1998)).

Even though OSHA does not authorize an employee to sue an employer for violations, an employee can sue an employer for failure to warn about occupational hazards. In Pennsylvania, the Supreme Court in 1998, ruled that an employer has a duty to communicate the dangers of the job duties to its employees, if such dangers had been known by employer and generally within the industry. (See Phillips v. A-Best Products, Co., 542 Pa. 124 (1998)). And generally Pennsylvania does not recognize the defense of a sophisticated user. Under this defense, an employer could claim that the employee is a sophisticated user and thus is aware of the dangers involved in the assignment. However, Pennsylvania courts have prohibited the application of that defense.

What can you, as a business owner, learn from this case? If you have employees, then you have a duty to warn your employees about potentially dangerous jobs or work conditions. Under OSHA, you also have a duty to mitigate such dangers. The good news is that OSHA helps employers identify these risks and develop methods to mitigate these risks. For help, visit OSHA’s website for more information. OSHA offers free on-site consultations to small businesses.

Do you have a question about your legal obligations as an employer? Then ask a lawyer. Call McKee Law Office for a free consultation at 215-242-5260.

Sharmil McKee

Business Attorney

Philadelphia, Pa

blog@mckeeoffice.com

Company may legally ban religious headscarves

Posted on August 10, 2010 by Sharmil McKee

Nochumson, P.C. is reporting that the Third Circuit Court of Appeals held that a private company that operates a prison on behalf of Delaware County may ban employees from wearing religious headscarves in the workplace.

This is a surprising outcome, because generally religious outerwear is protected from employer discrimination. However, the court found that in this case, public safety is more important than protecting prison employees right to wear religious outerwear.

To read the entire article, click here.

Noncompete Agreements and Termination: Can my employer do that?

Posted on February 28, 2010 by Sharmil McKee

I received this question by email: I was terminated by my job, however, when I was hired, I signed a noncompete agreement. Is it valid now that they fired me?

This is my answer: I have a typical lawyer answer…it depends. What does it depend on? Mainly, the language of the agreement and the circumstances of your hiring. Most noncompete contracts state that your promise to not to compete with your employer survives termination, or remains in effect after your termination. However, a court will only enforce this noncompete if it has a reseasonable time-limit and geographic-limit. Also, a noncompete is only enforceable, if you signed it when you accepted the position with the employer. So, to answer your question completely, I would need to actually read your agreement. My best advice is to contact a lawyer who is familar with business law. If you want to receive a basic understanding about noncompete agreements in Pennsylvania, the internet offers many free legal research web-sites. Check out:

www.jenkinslaw.org

www.nolo.com

www.findlaw.com

Know that contract law is governed by state law. So, be sure that any material you are reading, specifically discusses Pennsylvania law. Visit my website for basic information about contract law in Pennsylvania – http://www.mckeeoffice.com/contracts.html

Feel free to contact my office anytime.

Do you have a legal question? Send your question to us at http://wp.me/PN9wo-gz

Good luck.

Sharmil McKee | Business Lawyer | blog@mckeeoffice.com

Health Reform and Small Business

Posted on September 26, 2009 by Paralegal

As a business owner, you are probably monitoring our country’s efforts to reform our health care system. The U.S. Health and Human Services Department recently reported that small business are uniquely feeling the impact of skyrocketing health care costs. In fact, nearly one-third of the uninsured – 13 million people – are employees of firms with fewer than 100 workers. However, the solution is not simple, judging from the myraid of proposals and reports. The HHS created a website to serve as a central hub to organize, present, and explain the prosposals. They also have a forum to allow small businesses to discuss the impact of the health care reform plans. Visit healthreform.gov for more information.

Employees Maybe Your Worst Threat

Posted on March 10, 2007 by Carlos Sillero

Slacker or hacker? | The Register

According to a recent study, the vast majority of insider IT sabotage is carried out by employees – or ex-employees – who have already showed signs of concerning behaviour such as tardiness, truancy, arguing with colleagues, and poor job performance, according to US researchers.

The findings come from a five-year insider threat study by researchers from Carnegie-Mellon University’s CERT Coordination Centre and the US Secret Service The study- which ought to worry anyone who has difficulty getting into the office on time – 80 per cent of the insider attacks studied were carried out by people who were already known to be disgruntled, but were poorly or ineffectively dealt with by their managers or employers.

Lesson: develop a written policy for addressing and terminating disgruntled employees. Don’t wait until a crisis develops.

Do you have a legal question? We offer free consultations regarding this and others legal issues. Call today or chat online, privately, with an attorney every Monday through Friday from 8 a.m. to 8 p.m. at www.mckeeoffice.com

McKee Law Office

245 W. Allens Lane

Philadelphia, Pa 19119

Telephone: 215-242-5260

Toll-Free: 1-877-273-0749

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Web: http://www.mckeeoffice.com

Independent Contractors and Worker’s Compensation

Posted on December 5, 2006 by Sharmil McKee

A Pennsylvania court recently ruled that a claimant was not entitled to worker’s compensation because he was not an employee, but rather he was an independent contractor.

The Court, while ignoring the independent contractor agreement and the non-compete agreement signed by the company and the claimant, examined the nature of the employment to determine if the driver was an employee and eligible for worker’s compensation. Based on the following factors, it determined that the escort driver was NOT an employee and therefore NOT eligible for worker’s compensation:

the company did not control the details of the trip.
the claimant may refuse any assignment.
the company provides no training or equipment.
the drivers did not need to attend any functions at work (i.e. no mandatory employee meetings)

Beacon Flag Car v. W.C.A.B., No. 928 C.D.2006 (Oct. 31, 2006).

What does this case mean for you, as a business owner? The Unemployment Compensation Board and the Workers Compensation Board are not required to respect your independent contractor agreement. The boards, including the Internal Revenue Service, will examine your actual relationship with the work to determine if he or she is independent. So, for examine if you control the hours and activities of the worker, the I.R.S. may declare that your independent contractor is an employee for tax purposes.

What should you do? In addition to carefully drafting your independent contractor agreement, you must critically examine your relationship with the person. It is best to develop a standard operating procedure for governing and working with your independent contractors.