Employer Liability for Employee Injuries In the Company’s Gym

Health-and-wellness benefits are all the rage. Some employers offer their employees a discount on gym memberships. Some offer a monthly stipend to be used towards the fees at a health-club. And some have an on-site fitness center.

Employers who are considering building an on-site fitness center for employees commonly want to know how they can protect themselves against a personal-injury lawsuit. For example, an employee drops a dumbbell on his foot and breaks a toe. (Don’t laugh, people, broken toes are brutal!)

What’s to stop the employee from suing his employer for his injury? Assuming that lifting weights is not part of the employee’s job, it would not have been an injury incurred in the “course and scope” of his employment and, therefore, would not be covered by workers’ comp. And you, dear employer, own the equipment, including the dumbbell, so you’d surely be the first defendant to be named.

To avoid the “no-good-deed-goes-unpunished” phenomenon, employers will ask whether they can require employees to sign a waiver or release as a condition of using the fitness center. Until a few years ago, the answer was, “not really.” Of course, you could require that they sign a waiver but it would not be effective if you ever needed to use it because the law prohibited waivers of claims for future injury.

In 2008, in Slowe v. Pike Creek Court Club, the Delaware Superior Court held that such claims could be released but only if “the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” In Slowe, the court held that the waiver at issue did not meet this “crystal-clear-and-unequivocal” standard and, consequently, the waiver was not effective, but left open the possibility that a “properly-worded release might effect a waiver of premises liability.”

In July, the court had the opportunity to address the issue again and, this time, found the waiver to be enforceable. In Hong v. Hockessin Athletic Club, the plaintiff, a member of the athletic club, signed a comprehensive waiver of liability and release in connection with her membership agreement. The waiver expressly stated that she and all others on her membership assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility.” The court held that this was sufficient to constitute a waiver in “crystal clear and unequivocal” terms and dismissed the suit.

There are no guarantees in life or in the law and this situation is no exception. Although this case offers employers some very good news when it comes to avoiding liability for on-site injury of employees and visitors, it is, of course, not a guarantee. Nevertheless, in light of this case, there seems to be no reason not to require a waiver for your on-site fitness center.

Hong v. Hockessin Athletic Club, No. N12C-05-004-PLA (Del. Super. July 18, 2012).

The Importance of Office Space

How important is office space to employees?  Very important, apparently, according to this article discussing a “summer office swap” conducted at a Boston-area advertising agency.  During the summer months at this forward-thinking firm, nearly every employee switches office space based on a lottery system.

There were a small number of managers with offices, and regardless of how high their pick was, they could not keep an office. However, who did get the office appeared to depend on an elaborate bartering system, which resulted in more lowly office types offering services such as babysitting, car washing, and coffee retrieval in exchange for a seat in a coveted manager office.clip_image002

The article is a good reminder of how important office space is to employees. More than a few employment discrimination lawsuits have been based, in part, on the office (or cubicle) an employee is assigned to.

In 2003, there was a Delaware case involving a plaintiff who filed a federal lawsuit which entailed, among other things, his objection to an office space “auction” at University of Delaware – where the best offices would go to the highest bidder and the money raised would go into a fund for use of the Department.

More recently, I had a case where among a plaintiff’s evidence of “retaliation,” were claims that she was given a “dirty, dusty cubical walls filled with dust mites.” And of course, who can forget the movie Office Space, and Milton, whose most prized possession was his Swingline stapler, and whose cubicle was continually moved until he was eventually wound up in a dimly lit basement among the boxes.

The legal profession is one of the last standouts where a good portion of the employees – lawyers and paralegals – typically have real offices with doors: associates have window offices, partners have bigger window offices, and paralegals have interior window-less offices. I know this is unusual for most of corporate America. But as the Boston Globe article illustrated, even among cubicles there is a hierarchy: those closest to the window, most shielded from foot traffic, etc.

Employers should keep in mind the importance of office space to employees, and what a difference small changes can make. In this era of layoffs and belt-tightening, there may be simple and relatively inexpensive ways to reward your employees and keep them happy: think about small ways their work environment can be improved. Many (indeed most) employers are not cut out for the “summer office swap” conducted by the Boston firm – if this was ever attempted in a law firm, I’m quite certain it would result in a revolt that would make the Pakistani lawyers revolt look tame. Nevertheless, consider what might work for your workplace: access to natural light, modest levels of privacy, can go a long way to build employee loyalty.

Employee Theft Is More Common than You May Realize

Nearly 60% of terminated or  laid off employees steal proprietary company data when leaving, says a new study released by the Ponemon Institute, an Arizona-based research company.  Most employees take hard copies or paper documents but they also admit to downloading and saving data and sending information as attachments to personal emails.

The study does not indicate whether this trend is on the rise but I’d venture to guess that it is, based only on my clients’ experiences.  It’s become very common for an employer to discover that an exiting employee emailed himself sensitive information prior to his exit.  The study reports that approximately 25% of the employees who admitted to taking data admitted that they were able to access the company’s network even after they’d left.  This is obviously the first step when preparing to terminate an employee–remove their access to all confidential data, whether in electronic or paper form. theft

It’s best to have IT turn off electronic access prior to the termination meeting.  And, at the same time, have them scan his emails to determine whether the employee has sent any emails in the last couple of weeks to his personal account, such as a G-Mail, Yahoo!, or AOL account.  And determine whether these emails contained any attachments.  If so, you should determine just what it is exactly that the employee forwarded in those emails before the termination meeting.

If the termination is a particularly contentious one (i.e., this is a “problem” employee), you should also consider whether you want to preserve all of the individual’s incoming and outgoing emails if you don’t have a system in place to do that automatically.  Users of the full version (i.e., not Reader) of Acrobat 9 can do this in a flash by converting all emails to a single PDF document.  Or you can forward all of the emails to an HR or other secure email account.  Should the employee later file a claim, his emails could very well be the key to your defense so don’t risk losing them.

The founder of the Ponemon Institute suggested that employees steal data because they think they are entitled to it as something they helped to create.  Other theories include that employees want to use the information in their portfolios or to otherwise help them seek other work.  Of course, the traditional school of thought says that employees steal to “get back” at the employer in response to the wrong they perceive has been done to them. Whatever the reason, employers cannot afford to take this lightly. Confidential and proprietary information belongs to the organization–not to the employee–so the organization must be diligent in preventing the loss of its rightly-owned data.

Delaware Employers Face a Rising Obesity Rate*

Delaware has the 17th highest rate of adult obesity in the country, with more than one in four adults classified as obese, according to a new report by the Trust for America’s Health and the Robert Wood Johnson Foundation. Employers bear many of the indirect costs of this obesity rate, including higher disability costs, more sick days, and increased workers’ compensation claims. The report indicated that Delaware’s obesity rate increased significantly in the past three years—a sign that current health and wellness policies aren’t cutting it.

So what can Delaware employers do? The study highlights three steps employers can take to promote healthier lifestyles: apple, red

· Provide workplace wellness programs and preventative care benefits

· Give employees a chance to take breaks for exercise during the work-day

· Offer coverage for wellness services such as nutrition counseling and weight management programs

Some companies have already rolled out in-house yoga classes, discounted gym memberships, and free massages for stress reduction. How those perks will weather the economic downturn is an open question. Other options? Employers can offer healthier food choices at company meetings and events, and improve selections at the office cafeteria.

F as in Fat: How Obesity Policies Are Failing in America 2009, was released on July 1, 2009.  For a list of other blogs covering wellness and work-life balance, see our blogroll, including the 50 Best Blogs on Wellness, Women’s Interests, and Work-Life Balance

*This guest post is by Summer Associate Christen Martosella. Christen will be entering her second year of law school at NYU in the Fall but, until then, she’s busy making a great impression at YCS&T.  Thanks, Christen!

Is Your Workplace Psychologically Healthy?

Bullying in the workplace has been on the employment radar for several years, now.  But what exactly bullying is, on the other hand, remains elusive and without a universal definition.  The American Psychological Association (APA), has provided a way to come close, though. image

Each year, the APA sponsors the Psychologically Healthy Workplace Award program.  The award program recognizes employers who excel in five categories.  When a workplace can implement each of the five, it qualifies not just as a “good place to work,” but as a psychologically healthy workplace.  

The five types of workplace practices that contribute to a psychologically healthy work environment include: (1) work-life balance; (2) employee involvement; (3) employee growth and development; (4) health and safety; and (5) employee recognition.  These factors mirror those most commonly cited as the most important drivers for employee engagement, as well. 

Employers interested in reducing health-care costs, improving quality and productivity, and positioning their organizations for recruitment and retention of the best employees can learn more at the APA’s website.

50 Best Blogs on Wellness, Women’s Interests, and Work-Life Balance

Delaware Employment Law Blog is pleased to add the following 50 blogs to its “Best of” Blogroll.  The common premise among these blogs is the idea that well-rounded employees are happier employees and happier employees perform better for their employer, who, in turn, enjoys more success overall.  In other words–wellness and work-life balance are valuable principles, which should be considered high-ranking goals among employers.   man holding blog

Here’s the list, alphabetically:

  1. About Working Moms
  2. Alliance for Work-Life Progress
  3. Business Week’s Working Parents Blog
  4. Chief Home Officer
  5. Corporate Voices
  6. Corporate Voices for Working Families
  7. Discovering Your Inner Samurai Blog
  8. FunnyBusiness
  9. Half Changed World
  10. How She Really Does It
  11. Hybrid Mom Insider
  12. Institute for Women’s Leadership
  13. Jugglezine
  14. Kathy Lingle’s Work-Life Blog
  15. Moms Rising
  16. Motherlode
  17. Mothers Movement
  18. Newly Corporate
  19. On Balance
  20. Progressive States
  21. Sloan Network
  22. Sue Magazine
  23. The Anti 9-to-5 Guide
  24. The Juggle
  25. The Lattice Group
  26. The Women’s Initiative Blog
  27. The Work/Life Balancing Act
  28. The WorkLife Monitor
  29. Women for Hire
  30. Women on Business
  31. Women’s Leadership Exchange Blog
  32. Women’s Rights Employment Law Blog
  33. Work from Within
  34. Work+Life Fit, Inc
  35. Working Mother
  36. Work-Life and Human Capital Solutions
  37. WorkLife Law Blog
  38. World at Work
  39. YourOnRamp.com
  40. Christina’s Considerations
  41. Corporate Wellness Quotes
  42. Employee Corporate Wellness Programs
  43. Employee Wellness USA
  44. Employee/Corporate Wellness Programs
  45. Meditation At Work Info
  46. My Meditation Coach: Improve your workforce!
  47. Wellergize
  48. Wellness Corporate Insights
  49. Wellness.com
  50. Workplace Wellness

Layoffs Can Lead to Abusive Workers’ Compensation Claims

Employers are conscientious about safety and injury-prevention, regardless of the economic climate.  But when the economy is difficult, employers should keep an especially cautious eye out for fraudulent workers’ comp claims.  There are three methods to prevent abusive workers’ comp claims that every employer can utilize, regardless of size or industry. shutterstock_17077399

To read more about how to best prevent laid off employees from bringing baseless comp claims, have a look at my guest post at the Workers’ Comp Kit Blog