Page 1

South Dakota ®

What’s Inside

Part of your South Dakota Employment Law Service

Jane Wipf Pfeifle, Editor

Vol. 15, No. 9 October 2010

Lynn, Jackson, Shultz & Lebrun, P.C.

Drug Use

What you need to know about growing number of medical marijuana laws ...................... 3

sexual harassment status sh, dam, el, cd, empmis, empinv

Ask the Editor

More than spinal manipulation offered with this service

Agency Action

A chiropractor literally took an employee matter into his own hands. When the employee objected, the employer took little action. It was a costly mistake.

Often, workers’ comp provides employees protection from retaliation................................... 3 EEOC report says women and minorities saw small rise in federal jobs ................. 4


Financial reform law has hidden diversity requirements for contractors . ...................... 5

Workers’ Comp

Employee who was unable to connect allergies to work loses claim .............................. 6

On Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. policies/204.html • HR Sample Policy  Respectful Workplace, policies/220.html © M. Lee Smith Publishers LLC

Facts Sheri Sheriff started working for Midwest Health Partners in September 2003. Her job was to open a physical therapy department at a newly acquired chiropractic clinic. Immediately after she was hired, one of the chiropractors, Dr. Curtis Meyer, began putting his arm around her and touching her. When she mentioned the incident to one of the nurses, the nurse told her she needed to get used to it because that was how he acted. Initially, Sheriff was afraid to report Meyer because she depended on the chiropractors for patient referrals. Absent the referrals, she wouldn’t get paid by the insurance company for her services. In March 2005, Meyer came into Sheriff’s office and kissed her on the forehead. She reported the kiss to Brenda Proffitt, Midwest’s manager, and told her about some of Meyer’s other actions. Sheriff then wrote a letter to Meyer, which Proffitt approved, telling him it was not OK for him to touch her, kiss her, squeeze her, or put his arm around her. She closed the letter by telling him not to do it again. When Meyer received the letter, he apologized to Sheriff and said he

wouldn’t do it again. She told Proffitt that as far as she was concerned, the matter was resolved, and she didn’t need her or Dr. Keith Vrbicky, the president of Midwest, to talk to Meyer. ­Vrbicky was aware that a patient at Meyer’s previous clinic had complained about his inappropriate conduct, and in April 2005, two Midwest patients also complained.

Increased pain By July, Meyer resumed his conduct of grabbing and embracing Sheriff, running his hand down her breasts and squeezing her into his body. She was unable to get away from him. He continued the behavior into September, and after grabbing her three times on September 14, she reported the incidents to Proffitt and Vrbicky. Proffitt gave Sheriff a copy of a letter dated September 23 from Midwest’s attorney advising Midwest to take aggressive action to protect itself and describing various measures it could take to stop Meyer’s inappropriate behavior. Other than the letter, she heard nothing further from Midwest (despite numerous requests) about how it planned to deal with Meyer. Midwest didn’t meet with Meyer until November, when it asked him to participate in counseling and acknowledge the “acts of sexual impropriety

Lynn, Jackson, Shultz & Lebrun, P.C., is a member of the Employers Counsel Network

South Dakota Employment Law Letter and familiarity” he had committed. Meyer refused to do either. Instead, he began intimidating Sheriff in various ways, including blocking the doorway, sitting close to her in meetings, and mocking her. She reported each of the incidents to management but received no response. On two separate occasions in January 2006, Vrbicky again asked Meyer to participate in counseling. Around the same time, Midwest told Sheriff that Meyer would be fired by February 16. It didn’t tell her whether he had consented to treatment or about its investigation. Sheriff eventually underwent treatment for migraines, anxiety, stress, depression, and shortness of breath. In February, Meyer finally attended one of five sessions on sexual harassment training but declined any mental health counseling. Nevertheless, his employment with Midwest continued well after February. Sheriff resigned a couple of months later on April 10.

Relief at the courthouse In December 2007, Sheriff filed suit against Midwest, claiming hostile work environment and constructive discharge. A jury found that she had been subjected to a hostile work environment and awarded her $100,000 in compensatory damages. Midwest appealed to the Eighth U.S. Circuit Court of Appeals (the federal court that hears appeals from South Dakota. In determining whether there was sufficient evidence to support the jury’s verdict, the Eighth Circuit reviewed the jury instructions. The jury was instructed on the elements of sexual harassment by a nonsupervisory employee. To succeed on her claim, Sheriff had to show the following: (1) she is a member of a protected group; (2) she suffered unwelcome harassment; (3) there was a causal nexus between the harassment and her membership in the protected group; (4) the harassment affected a term, condition, or privilege of her employment; (5) the employer knew or should have known about the harassment; and (6) the employer failed to take prompt and effective remedial action. Midwest agreed that Sheriff belonged to a protected group and was subject to unwelcome harassment. However, it argued that no reasonable jury could find that gender was the cause of the harassment or that a term, condition, or privilege of employment had been affected. It also claimed that it had taken prompt and effective remedial action. Specifically, Midwest argued that Meyer was simply a “touchy person” and that he patted men on the buttocks, too, indicating that his behavior was gender-­neutral. However, there was no evidence that he pulled men into his body, and no male employees had complained about 2

his conduct. Further, Midwest had asked him to sign a document, which characterized his conduct as “acts of sexual impropriety and familiarity,” clearly indicating that it knew his actions had to do with sex. After considering all of the evidence, the Eighth Circuit found that Sheriff had endured repeated unwelcome and offensive physical conduct from Meyer for two years. Despite her complaints, he kissed her and touched her breasts with his hand and his body, even after she tried to stop it by keeping away from him, confronting him, and asking for help. When Midwest delayed confronting Meyer, he mocked Sheriff and openly refused the employer’s requests to stop the behavior and get help. It was reasonable for a jury to find that the conduct was severe and pervasive. Given that Midwest didn’t keep in contact with Sheriff, it was logical for her to believe that it wasn’t taking her seriously. Further, it waited seven weeks before talking to Meyer about her complaint and didn’t fire him despite its assurances that it would. It didn’t even tell Sheriff that he had consented to harassment training. After considering all of the evidence, the court found that a reasonable jury could find that Meyer’s misconduct and Midwest’s response to that misconduct affected a term, condition, or privilege of Sheriff’s employment. It was for the jury to determine whether the employer acted promptly and adequately. Given that it took no action on her first complaint, waited seven weeks to confront Meyer after her second complaint, failed to keep her informed, and never told her who was responsible for the investigation, the court thought the jury’s finding was reasonable. Additionally, Meyer never completely complied with Midwest’s requests to get counseling and stop harassing Sheriff. For those reasons, the Eighth Circuit refused to overturn the jury’s verdict. Finally, Midwest argued that the $100,000 compensatory damages award was excessive. The jury heard testimony regarding the amount of counseling and treatment Sheriff had to undergo, her migraine headaches, severe stomach aches, vomiting, and missed work, and the negative effect on her family life. That was enough to uphold the damages award. Sheriff v. Midwest Health Partners, PC, Civ. 09-3367 (8th Cir., 8/30/10).

Bottom line Don’t ignore bad behavior — no matter whom it comes from. Sheriff gave Midwest lots of opportunities to fix the problem, but it couldn’t seem to follow through. Keeping the employee informed about what you are doing is key. Had Midwest responded immediately, taken action against Meyer, and let Sheriff know what was happening, it’s likely that it may have escaped liability. The behavior wasn’t that awful — until it went on for months. Ignoring the problem did not make it go away. ✤ October 2010

South Dakota Employment Law Letter

drug use

October 2010 article du, dt, leg, el,federal ada, hcra, os, jri, jrd

Baked but not fired? Medical marijuana laws create uncertainty for your policies The debate over the legalization of marijuana for medical purposes is far from a new one, yet it has seen a recent surge of interest, raising policy and liability questions for employers across the country. Ever since California legalized the use of marijuana for medicinal purposes in 1996, a steady stream of states has followed suit. Fourteen states and the District of Columbia have now legalized the use of marijuana for medicinal purposes.

How do the laws work? Though there have been efforts to pass national medical marijuana legislation, the possession, sale, and recreational use of marijuana remain illegal under

the federal Controlled Substances Act. So how do state medical marijuana laws reconcile the illegality of the substance? Medical marijuana legislation generally removes state criminal penalties for the use, possession, and cultivation of marijuana for patients with a recommendation or referral from their physician. Typically, the physician must indicate that the patient will benefit in some way from the use of marijuana for the treatment of specified conditions, which may include illnesses such as cancer, HIV/AIDS, epilepsy, multiple sclerosis, and glaucoma. Additionally, the federal government recently changed its long-standing policy of prosecuting users of marijuana. In October 2009, the Obama administration announced that it would no longer pursue medical marijuana users and distributors in states where it is legal, so long as they comply with applicable state laws. Medical marijuana laws vary in specifying how the marijuana can be dispensed to a qualified patient

Ask the Editor New exception to the at-will rule by Jane Pfeifle

Q I own two companies, ABC Widgets and XYZ Trucking. One day, an ABC employee was hit by an XYZ truck. The ABC employee wasn’t working when he was hit, so he couldn’t collect workers’ compensation. He sued XYZ for damages related to his injuries. He and the insurance company settled the lawsuit. I’m irritated at how much he claimed he was hurt. Are there any ramifications if I fire him? A Tread carefully. The Iowa Court of Appeals recently recognized a new exception to the employment-at-will doctrine in situations like the one you describe. In that case, Nathan Berry claimed he was retaliated against because his employer was angry that he sued a related trucking company. Berry argued that under the Iowa Constitution, the courts are supposed to redress legal wrongs done to citizens of the state. In addition, pursuing a legal claim is a fundamental right of citizens to protect their life, liberty, and property. With that basis, the court found that to fire an employee for suing a related entity is a violation of public policy. The court found that Berry’s case was similar to a workers’ comp claim for a work-related injury. Because that right is protected from retaliation, Berry should be able to pursue a personal injury claim October 2010

against a related employer without fear of retaliation. The court said that to rule otherwise would result in employees having to choose between their job and compensation for life-changing injuries. The court sent the case back to the district court to allow a jury to determine Berry’s fate. Berry v. Liberty Holdings, Inc. a/k/a Liberty Ready-Mix, No. 0-470/10-0094 (Ia. App. Ct., 2010).

What does this mean for you? While this case presents a unique situation — an employee injured in an accident with a truck operated by a related company — we could easily see South Dakota courts ruling the same way. South Dakota has recognized that workers cannot be fired for filing a workers’ comp claim. Similarly, our federal court has recognized that public employees cannot be fired for suing their employers. The South Dakota Constitution has similar language to that of the Iowa Constitution. So before you fire an employee for suing a related company, get some legal advice. Jane Pfeifle is an attorney with Lynn, Jackson, Shultz & Lebrun, P.C., in Rapid City and the editor of South Dakota Employment Law Letter. You can reach her at or (605) 3422592. ✤ 3

South Dakota Employment Law Letter

AGENCY ACTION Small changes noted in federal workforce. The Equal Employment Opportunity Commission (EEOC) has released its “Annual Report on the Federal Work Force for Fiscal Year (FY) 2009.” The report assesses the state of equal employment opportunity throughout the federal workforce, including trends in the composition of the workforce and data concerning employment discrimination complaints. Over the last 10 years, the EEOC has found that the participation rates of women, Hispanics or Latinos, and Asians have increased slightly. The number of women in the federal workforce rose from 42.3 percent to 44.06 percent, Hispanics/Latinos went from 6.81 percent to 7.9 percent, and Asian Americans went from 5.22 percent to 5.84 percent. In FY 2009, for the first time since FY 1995, the percentage of people with targeted disabilities in federal jobs held steady, halting a 13-year decline. The report also notes that in FY 2009, federal employees and applicants filed 16,947 complaints alleging unlawful employment discrimination. Final rule on cranes and derricks published. The Occupational Safety and Health Administration has issued a new rule addressing the use of cranes and derricks in construction. Approximately 267,000 construction, crane rental, and crane certification establishments employing about 4.8 million workers are affected by the rule, which was published in July. The rule is designed to prevent the leading causes of fatalities, including electrocution, crushed-by/struck-by hazards during assembly/disassembly, collapse, and overturn. It also sets requirements for ground conditions and crane operator assessment. Further, it addresses tower crane hazards and the use of synthetic slings for assembly/disassembly work and clarifies the scope of the regulation by providing both a functional description and a list of examples for the equipment covered. The previous rule, which dated back to 1971, was based on 40-yearold standards. DOL launches online H-2A job registry. The U.S. Department of Labor (DOL) in July launched an online registry allowing the public to retrieve information about temporary agricultural jobs that fall under the H-2A program. The tool was developed in compliance with regulations implemented by the department on March 15. The registry provides a searchable point of entry for the public to retrieve information about agricultural jobs filed under the H-2A program. It offers a range of customizable searches and gives users the ability to view, print, or download information about the jobs without the need to file a request under the Freedom of Information Act. The tool will display all active agricultural jobs until 50 percent of the period of employment has elapsed, and it will offer an archive of certified agricultural jobs for up to five years. D


or caregiver. In some states, certified and licensed dispensing centers are the only legally authorized providers of marijuana, while other states allow patients to grow, cultivate, and consume their own marijuana. Many of those states have now created state-run registries that require qualified patients to register and receive special identification cards denoting their medical need. Other states require only that patients possess written documentation from their physicians. All states limit the amount of marijuana that can be grown or possessed during a given time.

States’ laws and their impact Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law, joining Maine, Rhode Island, and Vermont on the East Coast. Alaska, California, Colorado, Hawaii, Michigan, Montana, Nevada, New Mexico, Oregon, and Washington round out the other states where medical marijuana is legal. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so). Last year, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana. In the meantime, existing laws continue to be interpreted and modified through legislative action or court decisions. The laws of the states in which you operate should be carefully examined for guidance. Some states, such as Colorado, have specifically stated that nothing in the medical marijuana law requires an employer to accommodate the use of medical marijuana in the workplace. In such states, it may be clear that employers can prevent employees from using marijuana at work, but it may not be clear whether employees are protected when they come to work with marijuana in their systems or when they test positive in a drug test. Other states have taken the opposite approach, specifically prohibiting employers from disciplining or terminating employees based on their medical marijuana use. Again, it isn’t always clear whether these laws apply to both on- and off-duty use.

Further legal issues, from ADA accommodation to safety Legal questions also arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don’t need to make such accommodations. Because the ADA doesn’t require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment. October 2010

South Dakota Employment Law Letter Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. Therefore, several state medical marijuana laws specifically prohibit the operation, navigation, or actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of medical marijuana.

Bottom line The good news is that in general, court decisions tend to rule in favor of employers that enforce drugfree workplace policies. Further, it doesn’t appear that state medical marijuana laws give employees a special legal claim to sue for wrongful termination. However, it’s hard to say, in light of recent developments on the state and local levels, whether this trend will continue. You should carefully review your drug policies and make sure they include provisions addressing the issue of medical marijuana use. D

government contractors October 2010 federal article. leg, gc, ds, drace, term

Financial reform’s hidden surprise: diversity requirements The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Barack Obama signed it into law on July 21. However, many employers probably don’t realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.

Office of Minority and Women Inclusion The federal financial regulatory agencies affected by the legislation will have to establish an Office of Minority and Women Inclusion. According to the legislation, each office is “responsible for all matters of the agency relating to diversity in management, employment, and business activities.” Each agency must establish an office no later than six months after the date of the bill’s enactment, and each agency administrator (head of the agency) will appoint an office director. •

The agencies subject to these requirements include: the departmental offices of the U.S. Department of the Treasury;

October 2010

the Federal Deposit Insurance Corporation;

the Federal Housing Finance Agency;

all of the Federal Reserve banks;

the Board of Governors of the Federal Reserve System;

the National Credit Union Administration;

the Office of the Comptroller of the Currency;

the Securities and Exchange Commission; and

the Bureau of Consumer Financial Protection established by the legislation.

Office functions for:

Standards. Office directors must develop standards

(1) equal employment opportunity and the gender, racial, and ethnic diversity of the agency’s workforce and senior management; (2) the increased participation of businesses owned by minorities and women in the agency’s programs and contracts; and (3) evaluation of the diversity policies and practices of entities that are regulated by the agency. Directors must also advise the agency administrator regarding the impact of the agency’s policies and regulations on businesses owned by minorities and women. Additionally, office directors must develop and implement standards and procedures to make sure the agency fairly includes and uses minorities, women, and businesses owned by minorities and women in all of its activities and business. That includes procurement, insurance, and all kinds of contracts. Contracts. The Exactly what these agency’s procedures for reviewing and regulations will evaluating contract entail isn’t clear yet. proposals and for hiring service providers must include “a component that gives consideration to the diversity of the applicant.” Additionally, contractors doing business with the agencies must submit a written statement that they will make sure (to the maximum extent possible) that they (and their subcontractors, if applicable) fairly include women and minorities in their workforce. Termination. If a director determines that an agency contractor (or subcontractor) didn’t make “a good-faith effort” to include women and minorities in its workforce, the director will recommend contract termination to the agency administrator. After the administrator receives such a recommendation, she can: (1) terminate the contract; 5

South Dakota Employment Law Letter (2) refer the issue to the Office of Federal Contract Compliance Programs (OFCCP); or (3) take other appropriate action.

Affected employers Employers that deal with the above agencies may be affected by these new diversity requirements. According to the legislation, these requirements apply to the following service providers: • financial institutions; • investment banking firms; • mortgage banking firms; • asset management firms; • brokers; • dealers; • financial services entities; • underwriters; • accountants; • investment consultants; and • providers of legal services. Additionally, the term “contracts” includes “all contracts for all business and activities of an agency, at all levels, including contracts for the issuance or guarantee of any debt, equity, or security, the sale of assets, the management of the assets of the agency, the making of equity investments by the agency, and the implementation by the agency of programs to address economic recovery.”

What you need to know If you’re a federal contractor, subcontractor, or serv­ ice provider for one of the federal agencies listed above or you expect to become involved with one of those agencies, you may be facing more regulatory review of your organization’s employment practices. However, exactly what these regulations will entail isn’t clear yet since each agency’s office will develop its own standards. Even though the agencies haven’t yet developed the new standards, if you think you may be subject to this legislation, it’s a good idea to start planning ahead. More specifically, you should: • • •


Determine whether your current contracts, subcontracts, or service agreements would cause you to fall under the legislation. Review your current diversity programs and practices. Review the OFCCP’s standards and determine how your organization’s practices and programs compare (since many speculate the new standards will be similar to OFCCP standards). Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D

workers’ compensation status wc, wcca, jri, evid, emphea

Allergic reaction at work not compensable An employee who suffered two separate allergic reactions at work was unable to find a doctor who could state with certainty that they were caused by something at work.

Facts David Thyen and his wife live on a small dairy farm near Watertown. Before reporting to work at Hubbard Feeds, Inc., each day, Thyen helps his wife by feeding the cows. On July 2, 2008, he reported to work as usual. He was working outside and monitoring the flow of wheat midds (the coarse and fine particles of wheat bran often called “tail of the mill”) because they had accidentally been contaminated with limestone. He then cleaned an area where old feed had spilled and become moldy and smelly. While performing these tasks, his face turned red and got hot. Running cold water over his face didn’t help. Soon after, his body got hot and began tingling with a burning sensation. The plant manager took Thyen to a clinic in Watertown. When they arrived at the clinic, Thyen began to shake uncontrollably. Dr. Allison Geier diagnosed him with an allergic reaction and gave him injections of epinephrine and Benadryl. When the shaking continued, he was admitted to the hospital for an overnight stay. A week later, he underwent allergy testing, but the results were negative. On July 16, at his doctor’s request, Thyen secured material safety data sheets (MSDS) from work. While he was in the office getting the sheets, he began experiencing symptoms identical to the ones he had on July 2. He saw the doctor the next day. Within a week, he saw another specialist, Dr. Brian Brennan, who was unable to determine the cause of the reaction. A review of the MSDS didn’t reveal anything that could be causing his symptoms — neither did a visit to the Mayo Clinic, a dermatologist, another allergist, or an occupational medicine physician. Thyen provided a sampling kit and asked his employer for some of the moldy feed to test. Because Hubbard had no protocol in place for collecting and testing samples, it refused his request. Thyen then brought a second kit, which had instructions. Hubbard again refused to collect the sample and later cleaned up the spilled moldy feed. When Thyen returned to work on November 5, he was required to sign an agreement stating that no samples would be removed from the premises. He has worked since then without any recurrences of the symptoms he initially suffered. Dr. Kenneth Rogotzke is an ear, nose, and throat physician. After seeing Thyen, he concluded that the October 2010

South Dakota Employment Law Letter allergic reactions were work-related, even though he was unable to determine the precise cause. Dr. Beth Baker, who is board-certified in internal medicine, occupational medicine, and medical toxicology, was hired by Hubbard to do a medical record review. She was unable to say with a reasonable degree of medical certainty what caused the reaction on July 2 and whether it was work-related. When Thyen filed for workers’ compensation, the South Dakota Department of Labor (SDDOL) noted that he had the burden of proving all essential facts. Specifically, he had to show that his injury arose out of and in the course of his employment. In a workers’ comp claim, work-related activities must be a major contributing cause of the employee’s condition. A doctor’s opinion about a major contributing cause must be based on sufficient evidence to establish that the injury arose out of and in the course of employment; it cannot be possibility or speculation. Several doctors found that the episodes occurred at work and that they might be work-related. However, the only thing they could rely on was temporal sequence. The SDDOL In a workers’ noted that the episodes occurred in separate environcomp claim, workments — one was near the related activities feed tanks and the second must be a major was inside the office. Expocontributing cause sure to toxins or allergens might have been as likely at of the employee’s Thyen’s dairy operation as it condition. was at Hubbard. Further, he had worked for Hubbard for hundreds of days without any symptoms. Because his exposure could have come from a variety of sources — e.g., food, drink, soap, clothing, insecticides, or chemicals — the SDDOL couldn’t say that his injuries stemmed from the workplace. The SDDOL was troubled that Hubbard didn’t make a greater effort to collect samples. In the department’s words, the employer’s actions showed a “total disregard for [Thyen’s] health, the health of its other employees and its customers.” Nevertheless, that didn’t change or shift the burden of proof. Thyen couldn’t prove that he had a compensable injury arising out of and in the course of his employment, and therefore, he collected no benefits. Thyen v. Hubbard Feeds, Inc., 2010 WL 3163182 (S.D. DOL, 8/4/10).

Bottom line Hubbard got scolded by the SDDOL for not allowing the moldy feed to be tested, but that was the sole penalty. Had the feed been tested and found to be the cause of Thyen’s allergic reaction, the insurance company would have had to cover the worker’s comp claim. In this case, the company’s decision may well have been the right one. However, it’s easy to see how an employer’s refusal to cooperate in an employee’s workers’ comp case could result in a retaliation claim. Thus, it is not an approach we recommend. ✤ October 2010

WORKPLACE Trends Morale named biggest workforce challenge. A survey of HR managers shows morale and employee productivity are top concerns for the rest of this year. Thirty-one percent of the HR managers surveyed by ComPsych Corporation, a provider of employee assistance programs, named maintaining employee productivity and morale as their top concerns. Twenty-six percent said dealing with health care costs and new legislation, 16 percent said finding qualified candidates, 14 percent said handling organizational change, and 13 percent said retaining top performers. Moonlighting rate drops. The multiple jobholding rate — the proportion of total employment made up of workers who held more than one job — was 5.2 percent in 2009, according to figures from the U.S. Department of Labor. That’s below the levels recorded during the mid-1990s. Among most of the major demographic groups, “moonlighting” has become less common in recent years compared with the mid- to late 1990s. The multiple jobholding rate reached its most recent peak (6.2%) between 1995 and 1996. The rate began to recede and declined to 5.2 percent by 2002. Since the start of the most recent recession in December 2007, the multiple jobholding rate has hovered around five percent. Among the major racial ethnic groups in 2009, the multiple jobholding rate for whites was 5.4 percent, while the rates for blacks and Hispanics were 4.8 percent and 3.3 percent, respectively. The rate for Asians was 3.2 percent. Survey finds millions of older workers in physically demanding jobs. A study from the Center for Economic and Policy Research shows that 37 percent of male workers age 58 and older have physically demanding jobs. The center conducted the study to assess the impact of raising the retirement age. The report also said that among those age 58 and older, difficult jobs were held by 62.4 percent of Latino workers, 53.2 percent of black workers, 50.5 percent of Asian/Pacific American workers, and 42.6 percent of white workers. Older workers with less than a high-school diploma had the highest share of workers (77.2%) in difficult jobs. Preliminary figures show drop in fatal occupational injuries. A preliminary total of 4,340 fatal work injuries was recorded in the United States in 2009, down from a final count of 5,214 fatal work injuries in 2008. The 2009 total represents the smallest annual preliminary total since the Census of Fatal Occupational Injuries was first conducted in 1992. Based on this preliminary count, the rate of fatal work injuries for U.S. workers in 2009 was 3.3 per 100,000 full-time equivalent workers, down from a final rate of 3.7 in 2008. D


South Dakota employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 10-21 “Unionized Employers Virtual Summit: Negotiating CBAs and Mastering Other Labor Challenges,” presented by attorneys James F. Kilcur, Christoper J. Murphy, and Robert C. Nagle. 12-15 “Conducting Effective Workplace Investigations Virtual Summit,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero. com. AUDIO SEMINARS — events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-5 “Independent Contractor or Employee? Avoid the Misclassification Crackdown,” presented by attorney Kara E. Shea. 10-7 “Conducting Firings and Managing Termination Pay: Legal Guidance for Employers,” presented by attorney Brian R. Garrison. 10-12 “High-Performance Performance Reviews: How to Take Employees to the Next Level,” presented by Jay Forte, Humanetrics. 10-13 60-MINUTE SKILL BUILDER: “Help! They Made Me the HR Manager: How to Survive and Thrive on the Job,” presented by Teri Morning, MBA, MS, SPHR, Teri Morning Enterprises. 10-14 “Silent Raids and Other New ICE Tactics: Immigration Compliance Best Practices,” presented by attorney Christopher L. Thomas. 10-18 “Monitoring Employee E-Mail, Texting, and Facebook: What’s Off Limits?” presented by attorney Margaret (Molly) DiBianca. 10-19 “Doing Business in China: What HR Needs to Know,” presented by attorney Robert L. Brown. D South Dakota EMPLOYMENT LAW LETTER (ISSN 1086-2617) is published monthly for $447 per year by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Copyright 2010 M. Lee Smith Publishers LLC. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent.

workers’ compensation status wc, wcca, jri

Can stress cause eye disease? An employee was unable to secure workers’ comp benefits for an unusual eye disease that she attributed to work. The South Dakota Department of Labor (SDDOL) didn’t blink — and no benefits were awarded.

Facts In 2000, Nancy Sleeper began working as a legal secretary for John Mairose Law Firm. In June 2003, she began having trouble reading, and her job-related stress escalated. Her ophthalmologist, Dr. Prema Abraham, diagnosed her with central serous chorioretinopathy (CSCR), which occurs when fluid gets trapped between layers of the retina, causing blurred and/or distorted central vision. After treating her for a year, Abraham believed the issue was resolved. She suspected that the stress of Sleeper’s job was a significant contributing cause. In 2006, Sleeper began having additional vision problems, and Dr. Monte Dirks, another ophthalmologist, determined that she likely would continue to have trouble reading fine print. Dr. Alan Weingarden reviewed Sleeper’s records at the request of the workers’ comp carrier. He determined that her vision was 20/20, the CSCR had resolved itself, and she had no impairment. He further found that the CSCR was unrelated to her work. When questioned more closely, Abraham said that the medical literature didn’t support a finding that CSCR is caused by stress, but she believed that it was a contributing factor. Weingarden testified that in his 20 years of experience, he had seen only two or three cases of CSCR annually and had found no connection between stress and the disease. He also noted that medical literature supports his finding. Thus, the SDDOL denied Sleeper’s request for payment of her medical bills, contact lenses, and prescriptions. Sleeper v. Mairose Law Office, HF 225, 2004-05 (SD DOL).

Bottom line The employer didn’t punish Sleeper for filing a workers’ comp for what appeared to be an unrelated eye issue. It did, however, along with the insurance company, find another physician who could opine that there is no known cause, including stress, of CSCR. With no other grounds for a work-related injury, no benefits were warranted. ✤

Editorial inquiries should be directed to Jane W. Pfeifle at Lynn, Jackson, Shultz & Lebrun, P.C., 8th Floor, 909 St. Joseph St., P.O. Box 8250, Rapid City, SD 57709-8250, (605) 342-2592, South Dakota EMPLOYMENT LAW LETTER is not intended to provide legal advice or opinions but rather to provide information about current developments in South Dakota

employment law. Questions about individual problems should be addressed to legal counsel. For questions concerning your subscription,, or Corporate Multi-User Accounts, contact your customer service rep­ re­sentative at (800) 274-6774 or ®


Workers’ Comp Discrimination Contractors Ask the Editor wouldn’t do it again. She told Proffitt that as far as she was concerned, the matter...