The first speaker addressed supervisory civil and criminal liabilities and workplace security. Attorney Ron Lipinski, Seyfarth Shaw, said that the recent trend in lawsuits is plaintiffs suing supervisors and management people directly.
“Unfortunately, sometimes supervisors don’t have the training that lets them understand employment laws and some of their obligations under OSHA [Occupational Safety and Health Administration],” Lipinski commented. Other areas of potential legal liabilities caused by supervisors are workman’s compensation, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). He covered the differences between the three.
“Sometimes the correct decision in a worker’s compensation case is the wrong decision in an ADA situation and is the wrong decision in a FMLA [case],” Lipinski stated. “Similarly, the Americans with Disabilities Act prevents you from doing some preemployment screening that your company may think is necessary to prevent injury. These are three acts that have different social policies attached to them and they wind up putting employers at risk.”
As an example, he said it’s almost routine to have an independent medical exam in a workman’s compensation case. But under the FMLA, employers cannot use a doctor they have a relationship with when contesting a request for family medical leave. Lipinski added that differences in workman’s compensation laws between states can create potential liability.
“The worker’s compensation system can provide some interesting events,” he said. “Safety pays off when you get a worker’s compensation claim. It’s a no-fault system and you’re going to pay. The question is how much you’re going to pay.”
Lipinski highlighted the various requirements under the FMLA, in which an employee can request up to 12 weeks of unpaid leave per year to care for a family member – a spouse, child, parent, or themselves – with a serious qualifying medical condition. During the employee’s leave, employers must maintain benefits, issue documentation, keep track of the hours the employee has expended during intermittent leave, and not count the time off under the FMLA in the employee’s performance review.
“They are entitled to return to work to the same or comparable position when they come back,” Lipinski stated. He pointed out that an employee must have worked for the company a minimum of 1,250 hours in the 12 months prior to the request for leave and have 12 months prior employment, although not consecutive. The FMLA applies to companies with 50 or more employees at their facility or within 75 miles of the facility. A question was raised as to whether summer help had to be included in the 50 employees, to which Lipinski replied, “it usually doesn’t” include summer help such as high school or college students.
Lipinski stated that lawsuits under the FMLA usually arise when the leave is intermittent, when the time off is counted against an employee in a performance review, or when a supervisor interferes with the employee’s right to the FMLA leave.
The ADA was addressed next, which covers a disability – a physical, mental, or emotional impairment – that affects a major life activity.
“Some courts define that [activity] as the ability to work,” said Lipinski. “If they have a qualifying disability, it is the duty of the employer to accommodate.” He explained that the accommodation may require job modification or assistance, within reason, or consideration for a vacant position for which the employee is qualified if the employer has a history of moving employees into vacant positions. Lipinski pointed out that an employee may not be qualified for the job if he/she is not physically capable of meeting safety requirements, i.e., using a respirator.
“You have to meet safety requirements,” he added. “They can’t be a danger to themselves or other employees.” An employee may also be unqualified for accommodation if he/she posts a “direct threat” to the safety and health of that employee or others, including the possibility of causing an accident or violent behavior. Lipinski provided guidelines in dealing with employees who claim impairments and may be seeking job modifications because of them.
Lipinski also discussed OSHA liability and the various citations possible. He stated that if an OSHA inspector comes to your plant, you are required to show them the company’s records but no one is required to speak to the inspector unless under a subpoena. Lipinski briefly addressed security planning, emphasizing that OSHA requires employers to have an emergency plan in place and ensure a safe workplace that includes measures to protect against workplace violence.
The topic switched to “bad news” as Valerie Wood, Energy Solutions, Inc., discussed the ins and outs of the energy market. She discussed the two components of natural gas delivery: the commodity, which is unregulated; and the transportation, which is regulated and includes interstate pipeline and utility distribution. Wood informed attendees that natural gas users have a choice in suppliers.
“You have the ability to purchase your natural gas supplies from someone other than your local utility,” she stated, explaining that users can contract with a marketer to purchase their gas and interstate pipeline transportation. Wood provided the reasons behind the fluctuating price of natural gas, including supply issues. She said wells currently being drilled have a shorter life span, energy companies are facing credit crunches because banks are unwilling to finance “risky” ventures, and demand is rising, particularly from natural gas fired electric generators.
Wood touched on the critical role of natural gas storage for winter consumption, weather issues, including the impact of hurricanes on natural gas production, and other fundamental factors impacting prices, including pipeline capacity, legislation, lack of sufficient imports, and speculative buying and selling on the New York Merchantile Exchange where the commodity of gas is traded.
A history lesson was given next, in which Wood stated that, “history is no longer repeating itself. We’re creating new history.” She highlighted the recent actions that have never taken place before with regards to prices, storage, and the lack of new drilling even though natural gas prices are high. According to Wood, “the market could go either way right now” in regards to prices, with analysts projecting rates to remain at their current levels for several years.
Wood next explained that one way businesses can keep natural gas expenses steady is with a natural gas futures contract, where the commodity can be purchased up to 72 months in advance. She stated that a futures contract doesn’t necessarily mean a user will save money on natural gas, but it does guarantee a price, protecting against price spikes and stabilizing cash flow. Wood also described how to set buying targets, how to determine how much gas to buy, and when to lock in the price. She said to find a natural gas marketer, talk to neighboring businesses, ask the local utility for a list, or hire a company that can provide the service of evaluating bids and arranging the contracts.
Electricity was briefly covered next, including the generation, transmission, and distribution, all of which are regulated. Wood explained that the three separate transmission grids within the United States are largely isolated from each other and that power cannot be diverted from one system to another.
After a break for lunch, Orion Samuelson, WGN Radio, gave an informative talk on his views of world agriculture.
“I think the family farm is very much alive and still the most efficient food production unit on this planet,” stated Samuelson, who believes the biggest change he has seen in agriculture during his 50 years in radio broadcasting is globalization.
“Globalization, to me, has driven the technology, the biotechnology, the mechanization, and all of the other things that are part of agriculture today,” he commented. “And boy have we had a couple of recent situations that tell us we are in a global agriculture.
“I’m calling her the one cow in Canada,” he began. “The one cow in Northern Alberta, Canada, that shook up Wall Street, that shook up the cattle market, that shook up the hog market, the futures market, all down the line.” Samuelson said the concern was that beef consumption would drastically drop.
“It shook up a lot of people,” he continued. “I say it proves the system is working. We found the cow before she got into the food chain.” Samuelson added that U.S. cattle producers are actually doing quite well, with cattle futures prices up six percent the last two weeks of May.
The second event he discussed that proves “we are global” was the severe acute respiratory syndrome outbreak in Asia. Samuelson stated that U.S. beef exports to Japan, and especially Hong Kong, have been impacted because no one is going out to eat in Asia.
Samuelson next changed the subject to energy, highlighting the Senate’s approval of the Renewable Fuels Standard that is now a part of the Energy Bill. He spoke on environmental issues, including the Healthy Forests Act, commenting, “This whole environmental issue needs some common sense.”
The second day of the convention gave Dr. Peter Nersessian, vice president, NRA Scientific Services, an opportunity to update attendees on the situation in Canada where one cow has tested positive for bovine spongiform encephalopathy (BSE). He stated that many have questioned why Canada waited so long to test the animal. The country considered the case a low priority since the veterinarian who examined the sick cow suspected pneumonia. Nersessian reiterated, though, that the Canadians have been “very thorough and conscientious in their investigation.”
Tom Cook, NRA president, followed with his comment that he believes both the U.S. and Canadian governments are handling the BSE situation very well, and that the one case has not affected U.S. beef consumption. He discussed a draft guidance document from the Food and Drug Administration’s (FDA’s) Center for Veterinary Medicine that addresses the use in animal feed of material from deer and elk that are positive for or are at high risk for chronic wasting disease (CWD). NRA would be submitting comments on the draft by the June 16, 2003, deadline.
Cook emphasized that one message the industry needs to boast is the 99.3 percent compliance rate with the FDA feed rule.
“If renderers are complying with the feed rule, they are doing their part in keeping BSE out of this country,” he stated. “It’s a simple message.”
Next, Dr. Gary Pearl, Fats and Proteins Research Foundation, informed attendees that the group is funding a $200,000 research project to develop an assay test to detect sheep, deer, elk, goat, and porcine material in meat meal.
Highlighting the region’s business meeting was the installment of new officers, including the election of the first woman as president of an NRA region, Rita Schneider, HRR Enterprises. Charlie Beard, National By-Products, was named vice president, and John Setchell, Mendota Agri-Products, was elected secretary/treasurer. Six new associate members joined the region: Centrifuge Chicago; Doane Pet Care; Harris Bank; Roskamp Champion; Thermal Dynamics; and Martin Sprocket and Gear.
August 2003 Render