‘Transparent’ brings gender identity issues to forefront

February 13, 2015 - by: Kristin Starnes Gray 1 COMMENTS
Kristin Starnes Gray

Amazon’s streaming series Transparent follows Maura Pfefferman (born Morton Pfefferman and played by Jeffrey Tambor of Arrested Development fame), a retired political science professor and parent of three adult children, as she finally reveals to her family that she has always identified as a woman. The show’s creator, Jill Soloway, was inspired by her own father, who came out as a transgender woman. Behind the scenes, Soloway has gone to significant lengths to ensure that the story of Maura’s journey is treated with sensitivity and respect.  Transgender Symbol

For example, Soloway has enacted a “transfirmative action plan,” which has included hiring at least 20 transgender cast and crew members, more than 60 transgender extras, and two full-time transgender consultants. In addition, all the bathrooms on set are gender-neutral, and Soloway has distributed copies of Julia Serano’s trans memoir “Whipping Girl” to her cast and crew. Not only has the show’s subject matter and Soloway’s hiring/workplace practices broken new ground, but Transparent also has made Amazon the first digital streaming service to win a Golden Globe for Best Television Series with Tambor also taking home the Golden Globe for Best Actor in a Television Series, Musical, or Comedy.

Along with depictions of transgender individuals in popular media like in Transparent and Orange is the New Black, gender identity issues in the workplace are gaining increasing attention as of late. The Equal Employment Opportunity Commission (EEOC) announced in 2012 its position that discrimination based on an individual’s transgender status (also known as gender identity discrimination) is discrimination because of sex and, therefore, a violation of Title VII of the Civil Rights Act of 1964. Indeed, the EEOC’s Strategic Enforcement Plan lists LGBT-related sex discrimination charges as an enforcement priority for 2013 to 2016. The agency has indicated that it received 160 sex-gender identity/transgender charges in 2013 and 140 through the third quarter of 2014.  According to the EEOC, on behalf of individuals filing such charges, it obtained $421,701 in monetary benefits in 2013 and $149,933 through the third quarter of 2014.

Federal employees also may file sexual orientation and gender identity discrimination complaints with the Office of Special Counsel (OSC), which receives and investigates allegations of prohibited personnel practices under Title V of the Civil Service Act. The OSC has taken the position that allegations of discrimination based on sexual orientation and gender identity may constitute prohibited personnel actions; therefore, it will accept and investigate complaints of sexual orientation and gender identity discrimination filed by federal employees.

In Transparent, Maura is in the early phase of her transition, dealing with such issues as hormones and handling awkward encounters with former acquaintances from her pre-transition days, all while trying to guide her often self-absorbed and self-destructive adult children onto the right paths. At the same time, employers and the legal community are in the early stages of addressing transgender and gender identity issues in the modern workplace.  There are surely many new developments on the horizon.  In the meantime, this blogger will continue to tune in (or binge watch, thanks to online streaming) as Maura navigates her transition with courage and a sense of humor.


Marky Mark and the Convicted Bunch

December 11, 2014 - by: David Kim 0 COMMENTS
David Kim

Just last week, Mark Wahlberg filed a formal petition with the Commonwealth of Massachusetts seeking a pardon for his 1988 criminal convictions for assault and battery by a dangerous weapon and possession of marijuana, amongst others. These crimes occurred well before Wahlberg became the public figure we all know from his work as an actor and film/television producer. Heck, these crimes happened before Wahlberg and his Funky Bunch were giving us all good vibrations and letting us know it’s about that time to bring forth the rhythm and the rhyme.shutterstock_96574432

There has been some blowback from certain individuals about Wahlberg’s petition, particularly and understandably from advocates for the victims of his crimes. From an employment perspective, however, what is interesting are the reasons that Wahlberg is seeking a pardon. In his petition, Wahlberg talks about the “formal recognition” an “official public redemption” would offer. But his petition also states that his criminal history prevents him from obtaining a concessionaire’s license in California and elsewhere, a likely troublesome issue in light of his “Wahlburgers” joint venture with his brothers (“Our family, our story, our burgers” – catchy isn’t it?). In addition, Wahlberg states that his criminal record precludes him from obtaining positions in law enforcement and that a pardon would help him continue his efforts to help at-risk individuals through his current involvement with law enforcement and other charitable ventures. While we like to think otherwise, there are some laws and regulations that even famous people cannot circumvent.

The use of an individual’s criminal background in employment practices has been a hot topic for years. Certain positions, such as law enforcement as alluded to by Wahlberg, cannot be obtained by law, regulation, or other rule by those with specific criminal histories. In addition, employers face a tricky balance in determining whether a criminal background should be assessed in making an adverse employment decision or refusal to hire. In 2012, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance about the use of an applicant’s or employee’s criminal background in hiring or employment-related decisions. The EEOC’s guidance provided that use of criminal histories could have a disparate impact certain minority groups and therefore be unlawful under Title VII of the Civil Rights Act of 1964 unless the employer conducts an assessment for the following factors before making an employment decision: (1) the nature and gravity of the offense, (2) the time that has passed since the offense, conduct, and/or completion of the sentence, and (3) the nature of the job held or sought. In addition, many states have their own requirements for when and how criminal background checks can be used.

While these issues have been around for a while, what has started to gain traction is local and state “Ban the Box” laws. These laws effectively ban the “box” in the application form that asks applicants to answer questions regarding their criminal history, putting further restrictions on when criminal inquiries can be made during the hiring process and what cannot be put in advertisements for available positions.

In New Jersey, Governor Chris Christie signed The Opportunity to Compete Act (known as Ban the Box Law) on August 11, 2014, and it is will become effective March 1, 2015. Briefly, the law prohibits employers from making criminal inquiries (either orally or through an application) until the first interview has been completed. The New Jersey law also prohibits job postings or advertisements that state the employer will not consider applicants who have been arrested or convicted of one or more crimes or offenses. Fortunately, the law doesn’t have a private cause of action, but imposes escalating civil penalties for each offense, and provides a voluntary disclosure exception to permit employers to inquire about criminal history if the applicant voluntarily discloses it during the application process or first interview.

Many other states including Massachusetts, Hawaii, Minnesota, Rhode Island, Delaware, and Illinois have their own version of the ban the box law, and a number of municipalities have passed ban the box ordinances, such as Philadelphia, Baltimore, San Francisco, and others. Employers should be familiar with the prohibitions in the applicable ban the box law in their jurisdiction as they can vary from state to state and municipality to municipality.

So a word of advice using terminology the great thespian Mark Wahlberg would appreciate. Employers are not Invincible and it doesn’t always happen to The Other Guys, it could happen to you. Although you may believe all this legislation comes from the out-of-touch minds of business model Transformers whose intellect would make them more appropriate residents of the Planet of the Apes, these laws are Happening and could result in The Perfect Storm of liability. So rather than Fear all this regulation, keep up to date on compliance measures and if you do so, your business will not be The Departed, but rather could be the Lone Survivor. And rather than spending sleepless nights worrying about liability and litigation costs, your evenings will be carefree Boogie Nights, where you can celebrate your business’s success and good fortune with the rest of your Entourage.









Ranking the high court

December 01, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

When football season kicked off earlier this year, I took the chance to glean some insights for HR professionals from the difficult job facing the new college football playoff selection committee. Now that we’re coming up on the end of the football season, I’m turning to the committee once more for inspiration.shutterstock_105026918

As I write, the selection committee is chewing over this weekend’s results and will let us know its judgment on the four best teams (so far) in college football. Soon, they will choose the “final four” who will play a two-week tournament to decide the national champion. Right now, Alabama and Oregon are pretty much the consensus #1 and #2. Despite Florida State’s best efforts to play their way out of this thing, they keep finding ways to win and are generally #3 by default. Mississippi State (last week’s #4) took it on the chin from their archrival, Ole Miss, so the committee will apply its eye test and pick a new #4 (and leave an angry #5 and #6). My money is on TCU at #4.

I’m going to borrow the format and select my top four Supreme Court employment law decisions from the last five years. I’ve ranked them below, along with a capsule summary that explains why I’ve ranked it #1, and so on. Then, I’ll pair them up, play them off of each other, and pick the champion. Feel free to disagree in the comments!

The Final Four

Number 1: Wal-Mart Stores, Inc. v. Dukes (2011). This case is a true heavyweight, combining employment law and federal class action procedure. Wal-Mart won at the Supreme Court, which held that a nationwide class action of present and former female employees was inappropriate under the Federal Rules. Wal-Mart’s win in this case was a powerful blow against attempts to aggregate individual employment decisions under one lawsuit.

Number 2: New Process Steel, L.P. v. NLRB (2010). This one gets in on flash. The case garnered a ton of controversy, newsprint, and political attention at the time. The ultimate question, however, may have been a bit pedestrian: Eventually, New Process Steel prevailed when the Supreme Court held that two members of the National Labor Relations Board did not constitute a quorum of the board for exercising authority.

Number 3: Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010). Wait a minute – this one isn’t even an employment case! No matter. AnimalFeeds is a key component of a recent line of Supreme Court authority that supports the use of arbitration to resolve disputes. More and more employers are presenting arbitration programs to employees, and they will particularly like the holding in this case that class action arbitration is not available unless the parties specifically authorize it.

Number 4: Gross v. FBL (2009). This case sneaks in and will probably seem a bit esoteric to non-lawyers. Gross held that “but for” jury instructions are the rule for Age Discrimination in Employment Act claims, unlike status discrimination Title VII claims in which a lower “mixed motive” instruction is appropriate. Gross has already had one follow-up: University of Texas Southwestern Medical Center v. Nasser (2011), which applied the higher “but for” standard to Title VII retaliation claims.

The Predictions

In the Rose Bowl, top-ranked Wal-Mart v. Dukes will win a surprisingly close victory over Gross v. FBL. Gross is already punching above its weight, but just can’t overcome the sheer significance of the Wal-Mart opinion. Next, in the Sugar Bowl, AnimalFeeds and its arbitration impact will score a minor upset over New Process Steel. Finally, Wal-Mart claims the title of most significant Supreme Court decision in a championship game that is never all that close.

So … who thinks my crystal ball is broken?


November 24, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Inspired by The Hunger Games trilogy, some employers may feel the urge to pile the employees onto a bus, head off site, and pit coworker against coworker in some form of physical competition under the guise of “team building.” Savvy employers are always looking for new and better ways to motivate the troops, solidify relationships, and build some esprit de corps. What better way than to take the workforce on a high-action field trip?

But they better be mindful of employment laws, particularly OSHA regulations, state tort law, and state workers’ compensation laws. shutterstock_196000976 In February 2009 OSHA published a letter of interpretation stating that employee injuries suffered at off-site teambuilding events are recordable in OSHA logs. The letter was requested after an employee was injured in a go-kart accident during an office retreat.

In 2012 the Supreme Court of Idaho held that an employee who was severely injured when he fell off a climbing wall at his employer’s off-site teambuilding event could not maintain a negligence action against the employer. The court relied heavily on a hold harmless agreement the employee signed before the activity.

In 2010 an Ohio appellate court ruled that an employee injured during a three-mile canoe trip was entitled to workers’ compensation benefits. The employee wasn’t actually injured while canoeing. Instead he was injured during a bout of horseplay when a few coworkers tried to pull him off an embankment and into the river. The court rejected the employer’s contention that the injury wasn’t work-related due to the unauthorized horseplay.

So before your enterprising HR department reaps the accounting department to go catch fire in Panem, keep these cases in mind. The more control the employer wields over the activity and the more the activity is required, the more exposed the employer could be to workers’ compensation and other liability.

The naked truth about nude celebrities in your workplace

November 17, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

Celebrities lately seem to be having a hard time keeping their clothes on.

Whether it’s one of the Kardashian sisters baring her bottom or Keira Knightley baring her bosom, you can hardly look at any social media site these days without being assaulted by celebrities in various degrees of naked-idity, as Radar O’Reilly once called it. While the exhibitionism has recently arisen mainly among the ranks of female celebrities, there has been no shortage of male body parts on display in recent years, what with NFL quarterbacks, New York politicians, and others seemingly unable to resist the urge to use their smart phones to do dumb things.  NSFW

All of which raises an interesting employment law issue: How does a company’s policy against sexual harassment deal with conversations that employees might have about current events, when those events can at times be sexually charged? If an employee forwards the Kardashian photo to a co-worker, is he violating the policy? What if he merely references the photo as further proof (as if we needed it) that nothing Kardashian-related has any redeeming social value? What if several coworkers engage in a spirited intellectual debate about the statement of female empowerment that Knightley claims she was making with her revealing photo?

As a side note, readers who are of a certain age may remember that a similar issue arose in the late 1990s, when a Wisconsin jury awarded $24 million to an employee who was fired for telling a female coworker about a “Seinfeld” episode with sexual overtones. While that case, contrary to its media portrayal, was not really about the right to discuss adult-themed sitcoms in the workplace, it didn’t matter in the end, because the verdict was thrown out on appeal.

Anyway, when does a discussion of current events turn into a violation of your sexual harassment policy? Like many other employment law issues, (1) it’s complicated, and (2) it really turns on common sense. An employee who forwards a nude celebrity photo to a coworker accompanied by a lewd comment does not somehow gain legal protection because the photo appeared in a classy magazine rather than Penthouse. By the same token, the employees having an intellectual discussion about Knightley’s political motivations are clearly not engaging in a communication of a “sexual nature,” even if the topic does involve a partially nude actress. In other words, just because a conversation relates to a subject that in certain contexts can be sexual (e.g., nudity), it’s not necessarily sexual in other contexts.

Similarly, there are words that can be sexual in some contexts, but not in others. One particular well-known and popular “swear word,” for example, clearly has a sexual connotation in some contexts, but at other times can simply mean “Go away, now!” or “What the … heck?” Not even the most creative plaintiff’s lawyer or aggressive EEOC investigator would likely claim that such utterances constitute sexual harassment, although to be sure, the use of such language in the workplace certainly might violate other company policies.

To put it even more simply, ask yourself, “Would I be embarrassed if my parents walked in on that?” A scholarly discussion of the nude body in late Renaissance art? Dad may find it awfully boring, but it’s probably not an example of sexual harassment. An employee displaying a life-sized poster of Will Ferrell streaking? You probably wouldn’t want Mom to see it, so that’s a good indication that it’s probably time to train your employees on that sexual harassment policy. Because really, the Kardashian sisters are distasteful enough already–why make it even worse by having them pop up as Exhibit A in a sexual harassment lawsuit you’re defending?

The Abominable Boss Man

October 31, 2014 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

In honor of Halloween, this post will address some of the many potential workplace issues in the Pixar film, Monsters, Inc.  If you’ve been living under a rock and have managed to not see this film (or its recent sequel), here’s a quick recap. A city called Monstropolis is inhabited by monsters and is powered by the screams of children in the human world. shutterstock_98138216At Monsters, Inc., employees (or “Scarers”) have the job of scaring human children and collecting their screams to power the city. The company, however, is facing a serious dilemma and potential energy crisis, as human children are become harder to frighten. Through a series of amusing misadventures, the top Scarer, Sulley, and his best friend, Mike, end up caring for a little girl they dub “Boo.”

In trying to return Boo safely to the human world, Mike and Sulley discover that one of the Scarers, Randall, plans to kidnap children (particularly Boo) and use a torture machine on company property to extract their screams. Randall tries to use the torture machine on Mike, but Sulley saves the day. Sulley reports Randall and his torture device to the company chairman, who responds by promptly exiling Mike and Sulley to the Himalayas. I won’t spoil the ending for the two or three of you who have not yet seen the movie.

Thankfully, in the human world, your boss can’t respond to a workplace complaint by  shipping you off to the Abominable Snowman (though this banished yeti happens to be much friendlier than expected). Indeed, a number of state and federal laws prohibit discrimination and retaliation against employees for reporting certain workplace issues. For example, the Occupational Safety and Health Act (OSHA) is intended to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .” OSHA contains a nondiscrimination provision, which prohibits employers from discharging or otherwise discriminating against an employee because the employee filed a safety or health complaint or otherwise engaged in protected activity under the Act.

The monster equivalent of OSHA might have saved Mike and Sulley a trip to the Himalayas, but then it would have been a rather short movie. Plus, the Abominable Snowman would still be sorting mail at Monsters, Inc., rather than  serving up some delicious snow cones. Don’t worry–the yellow ones are lemon-flavored. Happy Halloween!

Breaking Bad: Disciplining employees for off-duty conduct

October 06, 2014 - by: Marilyn Moran 1 COMMENTS
Marilyn Moran

You can hardly get through your morning coffee these days without seeing another story about some athlete, model, or actor who abused his wife, trashed her Beverly Hills hotel room, or went all shutterstock_180348752Archie Bunker in a racist Twitter rampage. Usually, high-profile celebrities are bound by employment contracts that require strict adherence to an impeccable standard of personal conduct. But what can the average employer do if Walter White, the usually quiet and docile chemist with a spotless work history, decides to break bad over the weekend, uses his RV for a meth lab, and has his mug shot splashed all over the news? Like so many legal questions, the answer is “it depends.”

Generally, under the at-will doctrine, employees can be fired for any reason, or no reason at all, as long as the reason is not illegal. Unfortunately, deciphering whether a reason is “legal” or “illegal”  is not as clear as Walter’s blue crystal. Obviously, it is illegal to discipline or terminate an employee based on the employee’s race, religion, or sex, but most off-duty conduct lies somewhere in the gray area. Until recently, most employers did not give a second thought before disciplining an employee for off-duty criminal conduct, but the Equal Employment Opportunity Commission (EEOC) has loudly condemned the practice. According to the EEOC, some racial minorities are disproportionately more likely to be arrested or convicted of criminal offenses than others, so the agency is critical of employment policies that universally disadvantage applicants or employees based on past criminal conduct.  As a result, the safest bet for disciplining employees for off-duty conduct is to focus on the job-related consequences of the behavior, rather than the behavior itself.

For instance,  it is safer to discipline an employee for unexcused absences incurred during a jail stint than to base the discipline on the underlying arrest. Likewise, while a bank would be justified in terminating a teller who has been convicted of writing bad checks because the teller is in a financially-sensitive position and handles customers’ money, the decision to terminate a janitor for the same reason would be less defensible because the off-duty conduct has no relation to the janitor’s job.

What about noncriminal conduct that carries a social stigma? Can you fire an employee who is caught cheating on her husband or has a second career as a porn star? What about someone whose Internet comments and Facebook posts are littered with racial slurs? Before doling out discipline or dusting off the pink slip for such behavior, you need to answer these questions:

(1) Has the employee’s off-duty conduct negatively affected his or her job?

(2) Has the employee’s off-duty conduct impaired the morale of your other employees or caused a disruption in workplace productivity?

(3) Has the employee’s off-duty conduct gone against your company’s stated mission and values?

If you can answer one or more of these questions in the affirmative, it is likely that disciplining the employee for his or her off-duty conduct will be legally justified. Still, to avoid a wrongful termination claim, you should document the reasons for the employment action with specificity and describe how the employee’s off-duty conduct negatively affected your business. Additionally, if you treat employees differently for engaging in the same conduct, such as in the example above involving the bank teller and the janitor, you need to articulate a legitimate business reason for the disparate treatment.

Bottom line: As employers, there may be occasions when you want to discipline employees for off-duty misconduct. To avoid liability, you should be ready to explain how the employee’s personal behavior had a negative impact on your company’s bottom line.

Labor Board gets an F for its treatment of A-List

September 29, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Celebrities … they’re just like us. Which is to say that they now have a reason to be ticked off at the National Labor Relations Board too. A recent decision by an NLRB administrative law judge tells Hollywood’s A-listers they get no special treatment under the labor laws.

shutterstock_157705382 (2)The MUSE School, founded by Titanic director James Cameron, is an elementary school in Calabasas, California, a wealthy town north of Los Angeles. Some of the students at MUSE are children of celebrities. Given the school’s notoriety, all MUSE School employees are required to sign an extensive confidentiality agreement as a condition of employment.

In June 2013 an employee left the MUSE School. Shortly after her departure, the school’s attorney sent her a sternly-worded letter accusing her of violating her confidentiality agreement and threatening legal action if she continued to do so. The employee, in turn, filed an unfair labor practice charge with the NLRB alleging that the MUSE School’s policy violated labor laws.

The employee claimed that the policy violated the National Labor Relations Act by prohibiting discussion of compensation, prohibiting recording anything taking place at the school, and prohibiting the making of any disparaging remarks about the school. The NLRB judge agreed.

In the past few years, the NLRB has taken a very harsh view of employer conduct policies. The Board has ruled that many seemingly neutral, well-meaning policies – courtesy policies, social media policies, nondisclosure policies – violate labor law because a reasonable employee could believe the language of the policy restricts their protected concerted activities, which include discussing pay, recording an employer’s unlawful conduct, and making statements critical of an employer.

The MUSE School argued that its high-profile founder and clientele meant its confidentiality policy deserved a little extra leeway. The NLRB judge briskly shot that argument down: “Respondent does not cite any case law or Board precedent showing how the confidentiality of its founders and celebrity clients triumphs its employees’ right to discuss their wages, hours, or other terms and conditions of employment.” Take that, glitterati.

The National Labor Relations Act was made law in 1935 to achieve industrial peace by regulating union-management relations. Eighty years later the Board is reviewing confidentiality policies at swanky L.A. private schools where celebrities send their kids. Maybe the NLRB judge just wants a feature in Variety.

HR sports roundup: football, futbol, and fireworks

July 02, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

As we head into the July 4 weekend, your EntertainHR sports reporters cover America’s favorite pastime–litigation!

The women who cheer football got a boost this week when the Oakland Raiders announced they would pay their Raiderettes the California minimum wage of $9 per hour beginning this coming season.  This blog first covered the story back in January when the lawsuit was filed. football, futbol, fireworksWe would not be surprised to see similar lawsuits from other cheerleading squads, particularly in California or other states with employee-friendly labor laws. The attorneys for the Raiderettes who filed the lawsuit will continue to pursue their action against the team. They seek back pay and attorneys’ fees for the alleged violations from past seasons.

The women who play football have filed a lawsuit of their own. A class of current and former players in the Lingerie Football League–now the Legends Football League–have sued the league in Los Angeles superior court for a litany of wage and hour violations based on the league’s alleged misclassification of them as independent contractors and not employees. Employee misclassification is a hot topic in employment law and has been the reason for a blitz of wage and hour class actions in recent years. The U.S. Department of Labor has devoted an entire section of its website to the topic.

One guy who watches futbol was reportedly fired for telling his boss he was out “sick” when he was actually watching a World Cup match between Germany and Portugal. The Chinese man was terminated after one of his supervisors saw his posts about the match on social media. Monitoring social media, in China, can you believe that?! The now-unemployed man was last seen sitting outside a Beijing train station holding a sign stating he was “looking for a humane boss.” Good luck with that.

And finally, a tip for celebrating Independence Day: Don’t set off fireworks in your coworker’s office, even if you’re a judge. It can get you in a lot of trouble.

Beating the Heat

June 09, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Last week, basketball royalty and media-superstar LeBron James was forced to make an early exit from Game 1 of the NBA Finals due to severe leg cramps. The King’s cramps were due in large part to the malfunctioning air-conditioning system at the AT&T Center, home of the San Antonio Spurs. Combined with the Texas summer outside, the system failure caused indoor temperatures during the game to soar to as high as 90 degrees. The high temps wreaked havoc on LeBron, resulting in muscle spasms that forced him to the bench late in the fourth quarter. Without James, the Miami Heat (ironically) fared poorly in the sweltering conditions, losing the game 105-90.  TooHot

As we enter the summer, the King’s struggles with the rising temperatures indoors highlights a concern for many employers whose employees work outside or in extreme temperatures on a daily basis. Under the Occupational Safety and Health Act (OSH Act) of 1970, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” Courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. This includes heat-related hazards that are likely to cause death or serious bodily harm.

OSHA’s Personal Protective Equipment (PPE) standard requires every employer in general industry to conduct a hazard assessment to determine the appropriate PPE to be used to protect employees from the hazards identified in the assessment. In addition to the general standard, OSHA has developed specific standards that apply to particular industries such as construction sites and shipyards. In addition, OSHA’s Recordkeeping regulations require that employers record certain work-related injuries and illnesses. For example, if a worker requires medical treatment beyond first aid, the worker’s illness or injury must be recorded. However, if a worker merely requires first aid for the worker’s condition, the employer is not required to record the condition. In the context of a heat-related incident, OSHA requires generally that if a worker requires intravenous fluids, the worker’s condition must be recorded. (This would apply to the Miami Heat, as LeBron James was given several IV cramping treatments both during and after Game 1.) But if a worker is only instructed to drink fluids for relief of heat stress, the worker’s condition is not recordable. The regulations provide more specific guidance on the difference between medical treatment and first aid.

Luckily for Miami Heat fans, King James and company were able to bounce back and win Game 2 on Sunday night. The series now moves to Miami for games 3 and 4, where, given the relative age of the Spurs players, Coach Gregg Popovich may have a tough time keeping his team focused on the series instead of touring the local retirement communities.

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