Courts "weigh" in on controversial employee lawsuit involving injury and obesity

“An Indiana court has ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work,” says the Huffington Post.

Under the Indiana court’s ruling (and an earlier decision by the state’s worker’s compensation board), Boston’s The Gourmet Pizza must pay for lap-band surgery for the plaintiff. The employee, who weighed 340 pounds at the time of the accident in March 2007, was accidentally struck in the back by a freezer door. He was told by doctors that he needed surgery to alleviate his severe pain, but for the surgery to be successful, he’d first need to lose weight (which rose to 380 pounds after the accident).

While his employers agreed to pay for the back surgery, they declined covering the recommended $25,000 weight-loss operation, pointing out that the employee was already obese before the accident. The courts saw it differently, however. They concluded that the surgery should be covered, since the employee’s weight and the accident had combined to create a single injury.

"There's actually a string of cases across the country that have reached similar conclusions," says the employee’s attorney, Rick Gikas. He cites cases in Ohio, California, Oregon, Florida and South Dakota, including some dating back to 1983.

As you might imagine, cases like these are especially concerning for employers – on both a legal and an emotional level. One, because of the cost implications with workers’ compensation claims and court cases. And two, because it’s easy to conclude that obesity is the employee’s “fault” and that it’s not fair for an employer to foot the bill for expensive weight-loss procedures.

But are these concerns significant enough to influence how you treat overweight individuals in the workplace – not hiring an obese candidate, for example?

"Legally, you cannot refuse to hire this 350-pound person because they're 350
pounds. That's illegal. But you might find some other reason not to hire them,"
says Tom Lynch, CEO of Lynch, Ryan & Associates, a consulting firm that
helps businesses manage workers’ compensation.

With one-third of Americans now considered obese (a body mass index of 30 or more), weight (and weight bias) in the workplace are issues that can’t be ignored. After all, what an employer might overlook or dismiss with obesity-related issues, the courts will not.

Courts "weigh" in on controversial employee lawsuit involving injury and obesity

Unpaid interns and the FLSA, what you need to know before hiring summer help

Spring is here and summer fast approaching, along with droves of college students hoping to turn their free time into a few months of valuable on-the-job training.

Whether it's because they're simply looking for work experience, or they need to earn a few more college credits, many students are willing to intern for little to no money at all.

While many companies may see at it as the perfect opportunity to get some extra help around the office, there are a few legal issues to consider before agreeing to something for nothing.

Intern or employee?

The Fair Labor Standards Act (FLSA) requires that nonexempt employees receive at least minimum wage for all hours worked and must also receive time-and-a-half pay for all hours worked more than 40 during the workweek.

While the FLSA doesn't define what an intern is, nor provide an exemption from minimum wages or overtime for interns, it does define an employee as "any individual employed by an employer." The definition of "employ" under the FLSA "includes to suffer or permit to work."

Under federal law, for-profit organizations must pay workers unless the position fits six criteria:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;


2. The training is for the benefit of the trainee;


3. The trainees do not displace regular employees, but work under close observation;


4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;


5. The trainees are not necessarily entitled to a job at the completion of the training period; and


6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.

To ensure compliance, employers offering unpaid internships should structure the position in a way that the intern receives the full benefit of the experience.

Employers can take it a step further and establish a written agreement between the business and the intern outlining the terms of the unpaid internship. The document should contain a clear definition of the position, including that it is a learning experience.

If you're not careful, hiring an unpaid intern that later turns out to qualify as an employee could potentially cost your company thousands in unpaid wages and hefty legal fines. When in doubt, pay interns at least minimum wage to avoid legal problems.

Unpaid internships that do not match all six of the DOL's criteria could also lead to legal problems involving workers' compensation, employee benefits, discrimination laws, federal and state taxes, and unemployment insurance coverage.

Failing to comply with wage and hour laws can lead to serious FLSA administration errors that could cost your business thousands in fines. Tools like the FLSA Compliance Kit can help you navigate through every FLSA regulation from child labor laws to timekeeping discrepancies.

Any additional advice for companies hiring unpaid interns for the summer? Please leave a comment and share your tips.

Unpaid interns and the FLSA, what you need to know before hiring summer help

Company faces serious OSHA violations and fines, third year in a row

Neglectful businesses that take safety shortcuts and fail to protect employees can bet that they will soon find themselves subject to strict Occupational Safety and Health Association (OSHA) investigations and owing steep penalty fines.

At most cases, one negative OSHA inspection is all it takes to turn a company’s poor safety standards around. For some, like 4 Brothers Stucco Co., the third time’s a charm.

OSHA has proposed $118,650 in fines against the Cleveland, Tenn.-based 4 Brothers for 15 alleged repeat violations of safety standards, making this citation the third in three consecutive years for the stucco contractor.

The latest inspection discovered employees exposed to falls of up to 22 feet when working on scaffolding, in an aerial lift and on the roof of a worksite. OSHA also identified electrical, overhead and chemical hazard communication (HAZCOM) weaknesses at the worksite.

"These sizable fines reflect both the seriousness and recurring nature of several of the conditions cited here," said C. William Freeman III, OSHA's area director in Hartford, Conn. "Keep in mind that falls are the number one killer in construction work and can occur in an instant. Be it a scaffold, an aerial lift, or a roof, proper and effective fall protection must be in place and in use at all times."

The latest inspection resulted in six repeat citations for violations ranging from no fall protection for employees in an aerial lift, to workers not wearing helmets and employees not trained to recognize scaffold hazards. Similar violations were also found in 2007 and 2008.

OSHA issues serious violations in instances where death or serious physical harm could result, and the employer knew or should have known about the danger.

It’s most important to note that out of the latest set of nine serious citations 4 Brothers received included “lack of a hazard communication program, training, material safety data sheets, and protective gloves for employees working with cement and hazardous chemicals.”

There’s an alarming trend emerging as the economy suffers that has more businesses including necessary OSHA safety training in their budget cuts. It may seem like cutting safety training could help some companies save money, but it will only put more workers at risk for serious injury and death, leading to increased OSHA fines, workers’ compensation claims and wrongful injury lawsuits.

With the total cost of work-related injuries in the U.S. is more than $50 billion annually, it should be a clear sign that cutting workplace safety corners, especially employee safety training, puts the success of your business in serious danger.

As our country continues to work through this recession, the demand for cost-effective safety training has never been higher. G.Neil is answering that call with affordable safety training products that take the guesswork out of OSHA compliance and help keep your employees safe from workplace hazards.

Company faces serious OSHA violations and fines, third year in a row

Obesity linked to more expensive workers’ comp claims

Data released earlier this month indicates that obesity is having an increasingly larger impact on workers’ compensation claims and workplace safety efforts.

Workers’ comp medical claims involving obese claimants open for one year can be up to three times as costly than those involving healthier employees, according to preliminary findings released by the National Council on Compensation Insurance (NCCI).

Claims that remain open for five years can be five times as expensive and the extra treatments related to obesity involved in some “smaller claims” can exceed almost 30 times the cost of treating a non-obese individual, according to NCCI.

Studies have shown that along with obesity, the heath care costs associated with employees who smoke and with conditions such as diabetes and high blood pressure can be significantly higher than healthy employees.

In addition to mounting health care costs, the cost of work-related injuries in the U.S. totals more than $50 billion a year. Though the costs are high, a growing number of business have been taking their chances with employee safety by cutting vital OSHA safety training out of the budget in the wake of the recession.

The combination of unhealthy employees and more businesses cutting safety training corners has the potential to add even more financial stress to organizations that are already feeling the pressure.

Employers can take a comprehensive approach to combating both rising health care costs and more expensive workers’ comp claims by promoting the importance of employee wellness and workplace safety.

Employer-sponsored wellness programs can help employees take that first step to improving their health. Find a gym to partner with that can give you a good deal on memberships for employees or bring health specialists in-house to train employees on the benefits of wellness.

As the economy continues to challenge businesses, more are searching for inexpensive safety training methods to save money and limit the number of workplace injuries that can lead to costly workers’ compensation claims.

G.Neil is meeting that challenge with new products that make employee safety training and OSHA compliance easier and affordable. With the right tools, it’s possible to keep workers safe and healthy without jeopardizing your budget.

Obesity linked to more expensive workers’ comp claims