The less employee discretion in carrying out the instructions, the better. Applicable Standards Prong Current industry practice is relevant, but it is not dispositive if industry practice is shown to be inadequate. Baker Tank Co. (1995). Employee’s Negligence Not the focus. The focus is on the employer’s duty to instruct with a great deal of specificity—whether it was sufficiently specific. However, the more specific that the instruction was, and the more that the employee ignored it, the easier it will be to show that the employee acted negligently. Even without an explicit requirement, employers are required to train their Employee Training – employees to perform a job safely. Degree of training required depends on the obviousness of the hazard, the experience of the employee, the likelihood that an accident would occur, and the degree of harm likely to result from an accident. See Pratt (1986). Enforcement & Adjudication Threat of Inspection & Citation Encourages employers to meet their pre-inspection duty. – Four Categories of OSHA Inspections & Their Priority Imminent dangers; Fatality and catastrophe investigations; Investigation of employee complaints; and Regional programmed inspections. Marshall v. Barlow’s, Inc. (U.S. 1978) OSHA § 8(a) agents of the Secretary of to search the work area of – “Empowers any employment facility within the Act’s jurisdiction.” purpose of the search is to inspect for safety hazards and violations of “The OSHA regulations.” is expressly required under the Act.” search warrant or other process “No 4th Amendment & Searches Unreasonable Warrantless Searches searches are generally – “Warrantless unreasonable, and this rule applies to COMMERCIAL PREMISES as well as homes.” Business’ Privacy Interest businessman, like the occupant of a – “The residence, has a constitutional to go about his business free from unreasonable official entries upon his private commercial property.” Legitimate expectation of privacy in records that a business is required to keep by law. McLaughlin (6th Cir. 1988). Little expectation of privacy in information on employee bulletin board. McLaughlin (4th Cir. 1988). Civil & Criminal Investigations Amendment prohibition against – “4th unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations.” Applies to businesses Exception for Closely Regulated Businesses/Industries – and industries with a long history of close government oversight. E.g., liquor and firearms. Court to apply this exception to OSHA inspections. declines
The less employee discretion in carrying out the instructions, the better. Applicable Standards Prong Current industry practice is relevant, but it is not dispositive if industry practice is shown to be inadequate. Baker Tank Co. (1995). Employee’s Negligence Not the focus. The focus is on the employer’s duty to instruct with a great deal of specificity—whether it was sufficiently specific. However, the more specific that the instruction was, and the more that the employee ignored it, the easier it will be to show that the employee acted negligently. Employee Training – Even without an explicit requirement, employers are required to train their employees to perform a job safely. Degree of training required depends on the obviousness of the hazard, the experience of the employee, the likelihood that an accident would occur, and the degree of harm likely to result from an accident. See Pratt (1986). Enforcement & Adjudication Threat of Inspection & Citation – Encourages employers to meet their pre-inspection duty. Four Categories of OSHA Inspections & Their Priority Imminent dangers; Fatality and catastrophe investigations; Investigation of employee complaints; and Regional programmed inspections. Marshall v. Barlow’s, Inc. (U.S. 1978) OSHA § 8(a) – “Empowers agents of the Secretary of to search the work area of any employment facility within the Act’s jurisdiction.” “The purpose of the search is to inspect for safety hazards and violations of OSHA regulations.” “No search warrant or other process is expressly required under the Act.” 4th Amendment & Searches Unreasonable Warrantless Searches – “Warrantless searches are generally unreasonable, and this rule applies to COMMERCIAL PREMISES as well as homes.” Business’ Privacy Interest – “The businessman, like the occupant of a residence, has a constitutional to go about his business free from unreasonable official entries upon his private commercial property.” Legitimate expectation of privacy in records that a business is required to keep by law. McLaughlin (6th Cir. 1988). Little expectation of privacy in information on employee bulletin board. McLaughlin (4th Cir. 1988). Civil & Criminal Investigations – “4th Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations.” Exception for Closely Regulated Businesses/Industries – Applies to businesses and industries with a long history of close government oversight. E.g., liquor and firearms. Court declines to apply this exception to OSHA inspections.
Employment%20Law%20-%20Datz%20-%20Spring%202012.docx