Tesla’s CEO makes personal pledge for employee safety

Kristin Starnes Gray

Tesla, an electric-automobile manufacturer, made headlines last month after Worksafe, a California-based worker advocacy group, released a report indicating that the injury rates at Tesla’s Fremont manufacturing facility were higher than the industry aNissan Mechanicverage in 2014 and 2015. For example, the report indicated that the rate of serious injuries at Tesla’s Fremont plant (i.e., those resulting in days away from work, restricted duty, or transfer) was approximately double the industry rate for 2015. The report further questioned Tesla’s claim that injury rates had fallen between 2016 and 2017, with Worksafe arguing that the injury data Tesla had recorded at that time was too preliminary to be considered accurate.

In an effort to improve safety, Tesla has recently made a number of changes, such as: adding a third shift to reduce overtime and improve safety; hiring an ergonomics team to focus exclusively on improving health and safety and reducing ergonomic risks; and adding a safety team to each department. Most recently, Tesla CEO Elon Musk took the additional step of sending this e-mail to employees to demonstrate just how serious he is about employee safety:

No words can express how much I care about your safety and well-being. It breaks my heart when someone is injured building cars and trying their best to make Tesla successful.

Going forward, I’ve asked that every injury be reported directly to me, without exception. I’m meeting with the safety team every week and would like to meet every injured person as soon as they are well, so that I can understand from them exactly what we need to do to make it better.  I will then go down to the production line and perform the same task that they perform.

This is what all managers at Tesla should do as a matter of course. At Tesla, we lead from the front line, not from a safe and comfortable ivory tower. Managers must always put their team’s safety above their own.

It will be interesting to see what comes from this personal pledge by Musk. In the meantime, all employers should be continually evaluating and reevaluating their safety efforts in the workplace. To drive home its mission of workplace safety, the Occupational Safety and Health Administration (OSHA) currently lists on its website the names of workers across the country who have lost their lives on the job in various industries, along with the dates, locations by state, and manners of their deaths. According to OSHA’s figures, “[m]ore than 4,500 workers lose their lives on the job every year” across the country and across industries. Planning, training, and supervision are keys for prevention.

Tragedies on and off the silver screen: How to avoid costly workplace injuries

April 10, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Resident Evil: The Final Chapter is the title of a science fiction horror film that was recently released worldwide. The horror that occurred behind the scenes in the making of the movie rivaled the fictional onscreen terror. First, the leading actress’ stuntwoman, Olivia Jackson, sustained life-threatening injuries, including cerebral trauma, a crushed face, a severed neWork Injury Claim Formck artery, a paralyzed arm that had to be amputated, spinal cord damage, and multiple broken bones, all from a motorcycle collision with a camera crane. Then, later in filming, another crew member, Richard Cornelius, was killed when one of the movie’s props, an Army Hummer, crushed him.

In addition to such stunt and crew film personnel, actors themselves often suffer serious workplace injuries while filming movies. For example, while filming “Syriana,” A-list actor George Clooney broke his spine during a stunt scene gone awry. His injury was so serious that he was bedridden for a month with severe migraines, during which time he also suffered from depression.

Like the Hollywood employees just mentioned, everyday workers also suffer workplace injuries. These injuries can prove costly to their employers in the form of workers’ compensation claims, Occupational Safety and Health Administration (OSHA) penalties, and loss of productivity and morale. Private employers reported approximately 2.9 million nonfatal workplace injuries and illnesses to OSHA in 2015. Moreover, the Bureau of Labor Statistics (BLS) reports that approximately 4,500 employees suffer workplace injuries each year that result in their deaths. Such recorded workplace injuries and illnesses range in severity and include wounds, amputations, back injuries, as well as fatal accidents from crushing and falling.

Almost one-half of the recorded workplace injuries were serious enough to result in direct or indirect financial loss to the employer, including the injured employee missing a day or more from work, requiring a transfer to a different position, or needing to limit some duties of his or her position due to a doctor-imposed work restriction. In addition, these are just the reported injuries. It’s safe to say that many thousands more injuries are either not reported by the employee and/or the employer.

Let’s take a quick look at the most common workplace injuries reported by employers and some tips for how to limit exposure to such accidents and injuries:

Overexertion

This tends to be the most common–and costly–type of injury for employers, resulting in a high number of workers’ compensation claims. How can employers limit injuries related to physical exertion?

  • Be sure employees take a sufficient number of breaks, especially in jobs that require strenuous physical movement. Many workplace injuries occur when a worker is tired.
  • Schedule the most difficult and labor-intensive tasks for employees at the beginning of their shifts, when they are fresh and able to concentrate more with respect to proper technique and safety.
  • Also, be sure that the workers have sufficient training to do their job tasks using proper methods and that supervisory personnel provide adequate oversight.

Slipping/falling

Another common cause of workplace injuries is slipping/falling. Such accidents are often preventable. Injuries sustained by employees who slip or fall in the workplace can be minor, such as bruises, or major, such as death due to a head injury. Here’s how employers can limit injuries related to slipping/falling:

  • Clean up spills as soon as they occur. Also, employers should ensure that the washing and cleaning of floors and stairs is limited to low-occupancy times of the day and that the areas being cleaned are marked sufficiently to put the employees on alert.
  • Be sure that all guardrails are properly maintained and that no debris or slippery trash (think: banana peels) causes hazardous conditions.
  • Finally, you can limit accidents with respect to falling from heights (such as ladders, rooftops, and stairs) by ensuring that employees always use safety harnesses and are trained about specific processes related to working from heights.

Vehicle accidents

Some employees must drive motorized vehicles for a living (cars, buses, trucks, tractors, etc.). Driving a vehicle as part of one’s job creates inherent safety risks and exposes both employers and employees to costly accidents and injuries. OSHA reports that workplace-driving accidents cost employers an average of $60 billion per year. How can employers limit injuries related to vehicle accidents?

  • Ensure that all drivers have proper training and licensing.
  • Conduct inspections of company-owned vehicles at regular intervals and make necessary repairs immediately afterwards.
  • Also, mandate that the employees who operate such vehicles be drug- and alcohol-free. Obviously, when an employee operates a vehicle under the influence, it results in compromised coordination, judgment, and concentration.

Companies must take active steps to keep their workplaces safe for employees, customers, vendors, and, in some cases, the general public. You, as human resources professionals, should work with both managers and employees to implement safety programs and provide thorough and regular training. With such practices, your workplace is less likely to resemble a horror film.

Workingjay

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.

A scar is born

November 11, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

On The Tonight Show Starring Jimmy Fallon the other night, the host and Matthew McConaughey competed to see who could throw the most footballs at the other guy’s face. Not his physical face, of course, but glass plates printed with each guy’s face. Toward the end, McConaughey steps in front of Fallon as he is about to throw, and I immediately start thinking, “What if he hits the actor square in the nose with a football?”shutterstock_183450509

As an employment lawyer, I wasn’t so concerned about McConaughey’s career. Did you see him as modern day Rust Cohle? Dude can pull off ugly just fine. No, my concern was whether he could be compensated for his injuries. Would it be covered by workers’ comp?  Could he sue The Tonight Show or Fallon? Turns out, Hollywood has had to deal with these kinds of safety issues in the past. Here are two cases worth noting.

In 2002 an extra working on the remake of Planet of the Apes sued Fox Entertainment for injuries allegedly suffered by heavy dust that the filmmakers blew across the set during a battle scene. The general rule is that workers’ compensation is the exclusive remedy for on-the-job injuries. The extra argued that the producers knew the blowing dust was harmful and thus they committed an intentional tort, which is not barred by workers’ compensation exclusivity. A California appellate court rejected that argument. Plaintiffs often try to get around workers’ compensation by accusing employers of intentional torts and seeking emotional and punitive damages. In the California case, however, the court relied on the crucial difference between acts of gross negligence and actual intent to injure, finding the case fell into the former category.

In 2006 actress Tippi Hedren of Hitchcock fame was injured on the set of the television show Fashion House. She sued the building owner and management firm for her injuries, but curiously did not sue her agent for putting her on Fashion House. Her attorney filed a voluntary dismissal without prejudice before trial, but he neglected to include a provision that would toll the limitations period on her action. Big mistake. When he subsequently refiled the lawsuit, it was dismissed as time-barred. As a result, Hedren won a malpractice verdict against her attorney for more than $1.4 million, most of which compensated her for physical, emotional, and economic injuries as a result of the accident.

So in closing, don’t throw footballs at each other’s faces, and hire a decent lawyer.

If Bill Cosby is wearing a garish sweater, this must be 1980s TV!

March 27, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

A few weeks ago, I saw a news story about how the last of the baby boomers are turning 50 in 2014. “Wow, that’s old,” I thought, until I realized that I’m 53. Then, as if I needed any further reminders of my elder statesmanship, one of the legal assistants in our office, a 20-something, accused me of “making up” the fact that there used to be a popular singer named Bing. Sigh. (And for the record, he was popular way before my time.)  CosbySweater

That’s it, I decided. Time for a blog post about popular culture from an era that none of those rascally whippersnappers will even remember: the 1980s.  That’ll teach ‘em not to be so darn … er, young. So charge up your brick-sized cellular phone, press “play” and “record” simultaneously on your 150-pound manually-operated VCR, and run your comb through that mullet: We’re going to take a spin through “Employment Law in1980s TV-Land.”

Of course, when you talk about HR nightmares from 1980s TV, the first thing that probably comes to your mind is the bar where everybody knows your name: Cheers. Who can forget owner Sam Malone’s puckish flirtations with Diane, Rebecca, and virtually every young woman who wandered into his bar wearing a short skirt and a jacket with three-inch shoulder pads? Those not-too-subtle propositions may have been cute in the ’80s, but they would translate into about 487 sexual harassment claims in this century, thank you very much. Not to mention the claims Cliff Clavin could bring against the bar for all the abuse waitress Carla Tortelli heaped on him. Once Sam was aware of Carla’s propensity to torment patrons, Cliff could have sued the bar for negligent retention. Sure, we all dabbed our eyes and stifled a whimper when Sam turned out the lights one last time in the show’s famous final scene, but if he operated his business like this nowadays, closing time would have come several years earlier, just as a result of all the legal fees.

Speaking of legal fees, what better place in TV Land to spend them than the firm of McKenzie, Brackman, Chaney and Kuzak, the swanky setting of that 1980s fixture “LA Law.” Although (or maybe because) it was set in a law firm, the show featured bad employment practices galore. Bon vivant divorce lawyer Arnie Becker was the west coast version of Sam Malone, with better suits, romancing young law clerks and clients with alarming regularity. And that workplace affair between Stuart Markowitz and Anne Kelsey, although both were partners, was still fraught with potential HR landmines. But the HR nightmare that made “LA Law” famous had to do with workplace safety. Who could forget ill-fated attorney Rosalind Shays stepping through the elevator doors only to find, to her everlasting (but not for long) dismay, that there was no elevator there – just an empty shaft, and a long, long way down? Could Rosalind’s grieving heirs have sued the law firm for her untimely demise? Probably not. In most states, the sole remedy for a workplace accident is through workers’ compensation.  But you can bet the Occupational Safety and Health Administration (OSHA) would have been out the next day to determine whether McKenzie Brackman should be fined for maintaining an unsafe workplace.

Finally, another popular, albeit much-maligned, hit show from the 1980s was “thirtysomething,” with an ensemble cast full of attractive but angst-ridden yuppies trying to figure out the meaning of life while coping with bratty kids, cancer, interfaith marriage, and of course (25-year-old spoiler alert), occasionally getting killed in car accidents. But let’s not forget that much of the (melo)drama in this show derived from the issues that business partners Michael Steadman and Elliot Weston faced when they worked at DAA, an ad agency run by the evil Miles Drentell, one of the greatest TV villains of all time. At one point, fed up with Miles’ unscrupulous and unethical tactics, our heroes clandestinely tried to help a competing agency, “Minnesota Brands,” conduct a hostile takeover of DAA. Apparently, Michael and Elliot were not aware that under common law principles, employees have a duty of loyalty to their employer. I think secretly orchestrating the downfall of your own company would probably qualify as disloyal, don’t you?

Interestingly enough, all of these issues – sexual harassment, workplace safety, and employee loyalty – have not gone anywhere since the days when we were listening to “Men at Work” sing about vegemite sandwiches on our Walkman. But we’re sure that your company’s employment practices have changed for the better over the intervening quarter-century. Now if only you could find a use for those leg warmers and parachute pants that are still tucked away in a corner of your closet.

Work hard, play hard work harder

November 11, 2013 - by: David Kim 0 COMMENTS
David Kim

As discussed in our previous blog post, the Richie Incognito-Jonathan Martin scandal has dominated the sports and national headlines. Lost somewhat in the midst of an Incognito-Martin-centric sports news cycle were the recent health scares of Denver Broncos coach John Fox and Houston Texans coach Gary Kubiak during week 9 of the NFL season. Fox, whose Broncos were on a bye week, experienced symptoms, including feeling light-headed, while golfing, and ended up having an aortic heart valve replacement procedure just days later. Kubiak, during the halftime of the Texans’ Sunday Night Football matchup with the Indianapolis Colts, collapsed on the field and was taken to a nearby hospital due to what doctors have described as a mini-stroke.

On the heels of these events, which occurred within 48 hours of each other, the health and work ethics of NFL coaches have come under scrutiny. Journalists, NFL analysts, and former players and coaches have discussed the need for the NFL to implement programs or procedures to create a healthier work environment for coaches. One former NFL player, Cris Collinsworth, has suggested the NFL implement a “7 to 7” rule, stating that teams should be forced to open its office doors at 7:00 a.m. and close them before 7:00 p.m. Others, including former head coach and NFL media analyst Brian Billick, state that the hours and pressure come with a job where you are judged on your performance week in and week out and that “we [coaches] do this to ourselves.”

The reality is that Fox and Kubiak are exempt employees and therefore are paid a salary for all hours worked and aren’t entitled to overtime. Absent specific industry or other regulations, or any applicable collective bargaining agreement, there is no limit to how many hours an exempt employee may work to perform his or her job. And since exempt employees aren’t entitled to overtime, employers often don’t care how many hours their exempt employees do in fact work.

Due to its public image, the NFL may evaluate whether to change its policies with respect to the working hours of its teams’ coaches or other employees. It may not. For most other employers, the belief is exempt employees have the ability to weigh the pros and cons of any position and choose to work in exempt positions that may require longer work hours, but provide a higher compensation in return. That doesn’t mean employers should turn an entirely blind eye to the work hours and habits of its exempt employees.

For obvious reasons, employers want to create a productive and efficient workplace, as well as retain the best talent, which means ensuring a certain quality of life for its employees and monitoring their performance. In addition, heart attacks, strokes, exhaustion, chronic fatigue, or other issues resulting from long working hours could entitle employees to workers’ compensation under applicable state law.

Although employers scrutinize–and for good reason–the hours worked by its nonexempt employees to ensure compliance with applicable wage and hour laws, being aware of the work hours and habits of all its employees, including exempt employees, is simply good practice. By doing so and taking the initiative, employers can be aware of potential issues before they manifest themselves, such as whether an exempt employee’s hours and production have fluctuated due to an apparent “disability” or other medical issue, thereby creating an obligation for the employer to engage in an interactive process regarding reasonable accommodations. Defense may win championships, but as they say, sometimes the best defense is a good offense.

Workers’ compensation latest battleground for NFL

September 27, 2013 - by: David Kim 0 COMMENTS
David Kim

When is $765 million a bargain? Apparently, when you’re the National Football League. By now most people know that the NFL agreed to pay $765 million last month to settle a lawsuit brought by more than 4,500 players and their families, who alleged that the league concealed what it knew about the dangers of concussion-related brain injuries. Attorneys for the plaintiffs point to the fact that immediate care is needed for retired players with severe neurological disorders, such as ALS, Parkinson’s and Alzheimer’s disease, many who would never receive remuneration during their lifetime should the case be litigated over many years. In addition, there was a concern that individualized claims could become complex due to the fact that certain former players with short NFL careers played the vast majority of their football outside of the NFL (college, high school, etc.). This settlement ensures that thousands of retired players obtain compensation needed for current and future medical injuries and exams. While this is true, most agree that the NFL has to be ecstatic with this deal. With annual revenues hovering around $10 billion, the NFL is paying a mere fraction to avoid a potential finding of liability as well as a public relations nightmare. And if anything, Commission Roger Goodell has admitted that one of his primary objectives is “protecting the shield.” Instead of spending years defending allegations that the league knew concealed and misled players about the long-term dangers of concussions, the NFL can say this settlement not only helps retired players in need but also funds future baseline medical exams and research and education funds intended to take appropriate preventative measures. While the settlement’s details are still being analyzed and debated, including questions (and confusion) from some former players about who is or is not eligible under its terms, another fight is brewing between the NFL and its former players that has not quite received the same national attention. That is because the battleground is California. Just a few weeks ago, the California Senate passed a bill (which previously passed the California Assembly) that would preclude workers’ compensation claims by athletes from non-California teams, as well as athletes who played only a portion of their career with California teams. The bill is currently before California’s governor, who many expect will sign it into law. Who helped lobby and push this bill through? You guessed it. The NFL, along with the other five other professional sports leagues that the bill affects: MLB, NBA, WNBA, NHL, and MLS. California’s statute of limitations on workers’ compensation claims is much less restrictive than in other states, and California is one of the few states that cover “cumulative” injuries such as brain trauma incurred over a period of time. As a result, former athletes who played for visiting non-California-based teams have been making claims in California for years, especially former NFL players seeking compensation for repeated head trauma and related brain injuries, because they cannot do so anywhere else. Many of these claims are made by little-known athletes who enjoyed relatively short careers, earned the league minimum, or never even made it to the “big” leagues. On the one hand, this bill’s impact is arguably limited to professional sports. Teams and their insurers pay the costs of successful workers’ compensation claims, not taxpayers. In addition, insurance premiums are often determined on an industry-specific basis and therefore the claims activity of professional sports leagues don’t directly affect other industries. On the other hand, there are concerns that this measure could lead to future legislation depriving workers in other industries from filing claims in California, or to legislation in other states’ creating carve-outs for specific classes of workers. In addition, there is a belief that if players are prohibited from obtaining workers’ compensation in California, they will have to turn to Medicaid, Social Security, or other forms of government assistance, leaving the public to foot the bill. The reality is that oftentimes legislation begets legislation. We may think of “athletes” as those men and women on SportsCenter and TV commercials making millions of dollars and whose lives have no similarity to ours. However, the fact is an athlete’s injury is considered a workplace injury just as if he or she was injured on the job as a foreman, truck driver, or messenger. And just because the California bill applies only to athletes doesn’t mean the next piece of legislation won’t apply to you, your class of workers, or your state.