Howard’s Wrap Up – March 3, 2017 – Part 1.

I’ve missed a few weeks due to travel, work, and a need to focus on various legal updates and the horrific Ft. Lauderdale Shooting. I’ll prepare several posts over the next few days to catch up. The Wrap Ups posted on the site in particular, and to some extent on the FP Workplace Safety Blog reflect my interests as Editor of the FP Worksite Safety Blog, but you do yourself a disservice if you don’t regularly skim through other FP communications pieces such as the California Employers Blog, our monthly FP Labor Letter, periodic Hospitality Newsletters, Labor Alerts, and other pieces. Therefore, I’m going to showcase recent FP Articles and Alerts which are relevant to the audiences that follows FP’s Workplace Safety Blog and the sites.

ABA OSHA Section Midwinter Meetings.

This annual meeting is essential for government, management and union-side attorneys who seriously focus on OSHA, MSHA and related legal and practical issues associated with workplace safety. Its neutral ground where the different groups exchange information and maintain professional relationships which facilitate efficient, professional and often respectful case handling, which benefits everyone. I have forged friendships with outstanding attorneys at all of my competitors and with government and union side professionals with whom I otherwise disagree. The content was affected by the embarrassing lack of an OSHA head after almost 14 months, and the absence of important government side representatives who had to attend the vital OSHPA conference (Note to OSHPA – please avoid scheduling your meeting at the same time as the ABA meeting – we miss you.).

We have less to report this year than from some meetings. Hopefully intrepid Bloomberg BNA OSHA Reporter, Bruce Rolfsen, will generate some useful updates.

FP Workplace Safety Group Attendees.

I will, with paternal pride, showcase our six FP Workplace Safety Practice Group attendees (we lost two at the last moment to conflicts). I’d put our crew up against any other attorneys for creativity, efficiency, doggedness, practicality, and congeniality.IIMG_0124

In the attached photo in front of the Northern Hemisphere’s largest fig tree, you’ll see in the center, my Co-Practice Leader and friend, former OSHRC member and Assistant Secretary of Labor, Ed Foulke, Appropriately, I’m at the end on the left, sweating after a hike in the Santa Monica mountains. Starting on the left is David Klass, a former Virginia prosecutor and member of our Charlotte team. Next to him is Charlotte-based Travis Vance, a genuine rising OSHA/MSHA superstar and my regular coconspirator on creative lawyering and expanded client communications. In front of Ed is Holly Manci, a sterling senior associate with the Charlotte team, and more than the equal of Travis and me at storytelling. Behind her is Todd Logsdon Todd has a degree in safety engineering, worked 10 years in manufacturing, and is a bona fide expert on Bourbon.

I hosted a group private lesson on cocktail making and cocktail food at the remarkably creative aptly named Hip Cooks in West LA. Sadly, we joked all evening about proper PPE, avoiding ergonomic injuries and other things that only safety nerds discuss. We also included California attorneys Fred Walters and Lisa Prince of Walters Prince, and outstanding Cal-OSHA boutique with which we often work. Keep up with them on their Blog. Fred proved to be wizard at mixed drinks. I also included my son, his girlfriend and other young members of the Film Industry – they actually give one hope for the often unfairly maligned Millennials. Impressive young professionals.IMG_7569

People hire lawyers, not law firms, and clients deserve to know about the professionals with whom they trust with their business. The makeup of our group helps explain why an entrepreneurial-type like me has happily stayed 34 years at FP as it expanded from 36 attorneys to 32 offices.

I hope that this bit of fluff has added some background about FP attorneys with whom you deal.

Cal-OSHA Updates.

While Fed-OSHA is slowed by the absence of leadership, Cal-OSHA has experienced no such problem. Please read the always excellent insider observations of Sacramento FP attorney Benjamin Ebbink about recent California legislative activity, including Cal-OSHA – Your Comprehensive Guide to 2018 Proposed California Legislation.

Workplace safety-related bills include the following:

  • Assembly Bill 1789 (Salas) – Valley Fever – Requires the Cal/OSHA Standards Board to adopt a standard for state public works projects to prevent and control Valley Fever.
  • Assembly Bill 2799 (Jones-Sawyer) – Cannabis – Requires an applicant for a state cannabis license to employ one supervisor and one employee who have completed a Cal/OSHA 30-hour general industry course.
  • Assembly Bill 2963 (Kalra) – Blood Lead Levels – Requires the California Department of Public Health to report to Cal/OSHA any instance where a worker’s blood lead level is at or above a specified amount (to be determined).
  • Assembly Bill 3031 (Quirk) – Power Tools: Dust – Requires an employer whose employees are involved in the use of power tools or other equipment for cutting, grinding, coring or drilling of concrete or masonry materials to provide specified training to employees to reduce health hazards associated with dust.The relatively young California Marijuana Law expressly protects employer rights to demand that employees report to work free from the presence of marijuana, so pay attention to _AB 2069. Requiring an employer to demand proof of impairment of a marijuana imposes a near-impossible burden on an employers, and will endanger coworkers and the public:AB 2069 would amend the Fair Employment and Housing Act (FEHA) to prohibit employment discrimination against individuals based on their status as a medical marijuana cardholder or because of a positive drug test for cannabis.  The legislation specifies that it does not prohibit an employer from disciplining an employee “who is impaired on the property or premises of the place of employment or during the hours of employment.”  However, as current technology does not establish “impairment,” despite validated studies showing often non obvious impairment, this provision will lead to significant litigation

California legalized medical marijuana in the 1990s, and in 2016 authorized the recreational use of marijuana. In its 2008 decision in Ross v. RagingWire Telecommunications, the California Supreme Court ruled that employers are not required to accommodate an employee’s use of medical marijuana.  However, that all may change with the introduction of Assembly Bill 2069 by Assemblyman Rob Bonta.

Recent News Items Pertinent to the Safety Professional (and interested Management).

  1. Are Standing Desks Effective?

I don’t know about you, but the concept of “standing desks” makes sense to me. A number of FP attorneys swear by the concept. Accordingly, check out the following articles: Are they actually effective? What’s your experience?

     2. Will the Netflix Piece “Seeing Allred” Increase Sex Harassment Claims.


Attorney and early advocate of challenging sex harassment Gloria Allred has done some good, but some people view her as a media seeking person who championed questionable claims and lowered the professional discourse. Nevertheless, she is still a force to be reckoned with and employers should consider the effects of her promotion toward increasing the number of sex harassment claims. Read the article below about the Netflix Documentary about her:

(CNN)Nobody will confuse “Seeing Allred” with a hard-hitting expose; rather, this Netflix documentary unabashedly celebrates publicity-savvy attorney/advocate Gloria Allred, shedding some interesting light on her career, even if it’s all flattering.

The irony is that filmmakers Sophie Sartain and Roberta Grossman began their look at Allred’s hard-charging brand of lawyering — with its emphasis on media appearances and never meeting a bank of cameras she wouldn’t rush to greet — during the allegations against Bill Cosby in 2014. Read more at LINK.

Outside of certain industries, we have not seen a tidal wave of EEOC charges, but one cannot deny that there will be meaningful changes in worker attitudes, both good and bad. Hopefully, employers will get ahead of the changes and improve work culture.


There is too little space to talk about recent movies and product through Netflix and Amazon Prime that I’ve liked, so I’ll just mention how impressed I was with this year’s Academy Award Nominees for Short Films – Live. I watched them Saturday night at Santa Monica’s Monica Film Center Movie Theater –, which shows solid independent films (that sadly we seldom see in Atlanta theaters). I was moved by the winner “The Silent Child,” an advocacy film for deaf children, whose writer and supporting actor learned sign language and became an advocate after her father was rendered deaf by chemotherapy. To feel good, read this Article about the young deaf star or this Belfast article. They were all good, but partly because of my African travel, I was also impressed by Watu Wote/All of Us and its balanced portrayal of Muslim/Christian conflicts in Kenya. I’ve never watched the Short Films before ….


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Howard’s Weekly Round Up – February 10

Legal Observations Based on This Week’s News.

If you are involved in safety or risk management, especially in construction, you recognize that struck-by accidents are almost always among the top three causes of employee deaths. What you may not appreciate is that most struck-by deaths do not occur on road projects where a motorist hits a worker. Employees routinely lose their lives when a front end loader, Bobcat, dump truck, tractor-trailer backing to a dock, or forklift in a warehouse hits an employee. Employers should analyze their workplace for potential hazards such as:

  • Areas near docks where employees may be walking or working near trailers;
  • Dock areas and aisles and racks where forklifts and other PITs are operating;
  • Construction worksites with constant dump truck traffic, many of which are independent contractors or owner operators of varying quality;
  • Construction sites, especially where there are limited lay out yards, such as in major cities, where employees are exposed to operating equipment.
  • Areas on manufacturing lines or around monorails, conveyors and robots.

This concern was borne out this week by the following article about Struck-by Incidents leading work-related deaths in North Carolina.

OSHA may cite employers in and outside buildings under a number of Standards, such as 1910.176(a) where employees are allegedly exposed to hazards of forklift operation in warehouse or manufacturing areas. We often challenge these citations because there is no proof of actual hazards. Employer precautions include marked pedestrian walkways, signage, barriers and training. Robot-related citations often focus on Lock Out or are cited under 5(a)(1) if there is a genuinely recognized hazard and approach in the specific injury.

It’s more challenging to develop protective methods for employees on foot in Ready Mix or construction sites or walking or working near docks or where tractor trailers are operating in a yard. Marked walkways may not be possible. Reflective vests are often at least one step, but probably not the only one. Struck bys can also arise in the manufacturing sector such as wear monorail ls and conveyors move components through an assembly plant.

Here is a Link to a 65 page Focus 4 Instructors Manual on Construction Struck by Hazards. Link to OSHA Poultry Plant wide Struck by Page. OSHA Construction E Tool. OSHA page on Unloading and Loading. 2015 FP Post on Struck bys.

Falls Remain a Problem. A recent headline that NIOSH found that nearly half of all construction deaths were Fall-related did not surprise anyone, but does again reinforce the need to continue emphasizing fall protection, and not just tying off, but also scaffolds, tethering tools, and other related issues.

Surprising Crane-related Death. No one knows many details but the industry-leading Manitowoc Cranes lost employees at an incident at a Pennsylvania site’s test deck for a crane. My point is that if a solid, safety-conscious industry leader such as Manitowoc has such a tragic accident, NO employer using cranes should become complacent. This sad accident is a reason to have a Stand-down on Cranes.

Cal/OSHA Approves Hotel Housekeeper Safety Rules. Cal-OSHA voted 6–0 on Thursday, Jan. 18 to enact Section 3345, Hotel Housekeeping Musculoskeletal Injury Prevention. UNITE-HERE has pushed this measure as part of its ongoing efforts to unionize hospitality workers by emphasizing alleged safety hazards. Their intent is demonstrated by Pamela Vossenas, Director of Worker Safety and Health for Unite Here: “Overwhelmingly women, immigrants, and people of color, housekeepers face high rates of workplace injury. The state of California has recognized the seriousness of the dangers housekeepers face and took an important step to protect these workers.”

Under the new standard, hotels will be required to identify and reduce injury risks for workers, including providing proper tools such as long-handled mops or devices to help make beds. Hotel housekeepers will receive training on injury risks and have the right to suggest solutions to those risks, according to the new rules. While parts of the Rule may be appropriate and hazards are presented, employers would be wise to remember the underlying goals. Safety conscious employers should address hazards before the Rule takes effect.

Comments by Benjamin Ebbink, who runs FP’s Sacramento office, writes for our California Employer’s Blog, and tweets excellent California legal/legislative news

Sexual Harassment and Workplace Safety and Health. Both nationally and at the state level, there is a lot of legislative action around sexual harassment and employment. Historically, little focus has been placed on viewing this issue as a workplace safety issue.  Fed-OSHA has traditionally been reluctant to address workplace violence via a 5(a)(1) approach without a more specific standard.  5(a)(1) citations require OSHA to prove that sexual harassment is a “recognized hazard” under the Fed-OSHA 5(a)(1) General Duty Clause.  However, the debate may change based on the recent revelations of conduct constituting assault and battery and sexual assault.

Cal-OSHA is working on a General Industry Workplace Violence Standard to expand from its Healthcare workplace standard. The Cal-OSHA proposal would require all employers to develop a workplace violence prevention plan that identifies and mitigates hazards.  Would an employee’s sexual harassment claims (particularly claims that would rise to the level of sexual assault) be deemed a “recognized hazard” that would warrant employer activity and trigger citation exposure?

There has also been a flurry of activity around local ordinances and (at least in California) proposed statewide laws to require hotels to supply hotel workers with “panic buttons” to raise the alarm in situations involving sexual harassment or violence.  That approach smacks of “personal protective equipment, PPE.”

Automation/Robots. The increasing discussion of automation, robots, and the “future of work” warrants attention.  The epicenter of the discussion seems to be out here in San Francisco and the Silicon Valley. A recent Bloomberg-BNA article addressed efforts by labor groups (in particular the Teamsters) to use local regulation and permitting to address the potential jobs and unionization.  The article noted: “Unions typically criticize automation as detrimental to fair wages and stable jobs, but the Teamsters’ initiative in California reveals a nuanced attitude in favor toward the future of organized labor.”

It is also interesting to consider the potential impact of automation on the construction industry, which may not seem like a candidate for automation at first blush due to the labor-intensive nature of the industry.  A recent article in the Economist laments low productivity in the construction industry, and mentions how new technology (such as digital “building information modeling”) may improve efficiency.  An article from the AGC magazine Constructor is a great read.  It primarily discusses the use of drones, which are useful in aerial photography, surveying, data collection, and more.  But the article also discusses robotics: “New developments allow for robotic brick laying, painting and pipe crawling.  Morris foresees the day when robotics will paint buildings or lay flooring when other trades leave for the day.”  The article points out that robots do not necessarily replace people, but working with robots requires different skills, which may necessitate retraining current employees.  The article even discusses 3D concrete printing!

One issue that may drive innovation in construction is the increasing and already serious worker shortage. We may see a push toward innovation and technology as a means to fill this gap, much as we have seen in fast food in response to Fair Wage efforts.


The new Netflix Altered Carbon series is superb and loyal to Richard K. Morgan’s excellent book. Great SciFi story, excellent acting, pacing and CGI. Loved it. IMDB details.

J.K. Simmons is great playing two versions of himself in different dimensions in Counterpart. Fast moving story. Good watch.100% on Rotten Tomatos so far


Weller Antique bourbon – very nice.




Posted in attitude/culture, beer, bourbon, scotch and wine, Cal-OSHA, general duty 5(a) citations, harassment, hospitality, movies, state osha plans, Uncategorized, union organizing | Tagged , , , , , , | Leave a comment

Howard’s Weekly Wrap Up – February 4, 2018

Mercifully, last week was not filled with big legal developments, so we’ll visit a few practical observations on safety compliance and managing OSHA Inspections.

Because safety professionals in particular, and managers in general, need to know more than their narrow discipline, we’ll continue talking about other employment law developments which affect safety and other business areas.


The Week’s Labor, Employment Law and OSHA Legal Developments.


Practical Observations.

  1. Flu and Wellness – As if the news has not been bad enough, the seriousness of this year’s Flu and flu-like illnesses was brought home to me this week when I ended up in the hospital with pneumonia or pneumonia-like virus. I was surprised that as I talked to clients this week, several of them volunteered a similar experience with recurrent attacks of “flu” or “sinus infections,” rounds of medicine and then something worse. For one take, read this article Flu symptoms similar to adenovirus: What is adenovirus? 
  2. We’ve already pasted previous articles about responding to flu in the workplace, and the key points remain the same – employers, perhaps through their Wellness Programs, should emphasize the flu vaccine, washing hands, getting sleep, and staying home when sick. Add to those points, the need to educate employees about the seriousness and variations of this year’s Flu season. Good article from EHS Today, How to Keep the Flu from Breaking Out in Your Plant.
  3. Signing OSHA Witness Statements – our Workplace Safety Practice Group emphasizes forthright and professional dealings with OSHA and other government agencies, but that does not mean that employers should fail to exercise their legal rights in responding to and managing an OSHA or other government investigation. It’s the duty of a government investigator such as an OSHA Compliance Officer, to build a file to support the elements required to make out the violations that the CO believes occurred. It is not the employer’s job to help make out the elements of a violation, especially when the CO may be wrong. Section VII.A. of the OSHA Field Operations Manual (FOM) notes the purpose of Witness Statements and that signature is voluntary:

Interview statements of employees or other individuals shall be obtained to adequately document a potential violation.

Statements shall normally be in writing and the individual shall be encouraged to sign and date the statement.

The short time period in which OSHA must complete its investigation and the understaffed realities of OSHA mean that citations issued, upon further more detailed analysis, may not satisfy the elements necessary to sustain a citation before a Judge. Without exceptions, when employers contest and go through the litigation process, additional facts come out and they often help the employer.

Section VII.B. of OSHA’s FOM expressly notes that statements are useful where problems may later occur:

CSHOs shall obtain written statements when:

  • There is an actual or potential controversy as to any material facts concerning a violation;
  • A conflict or difference among employee statements as to the facts arises;
  • There is a potential willful or repeated violation; and
  • In accident investigations, when attempting to determine if potential violations existed at the time of the accident.

Therefore, an employer has to ask  why it should encourage supervisory employees to sign a Statement prepared by the investigator. Investigators generally try to accurately set out the witness’ statement but they are trying to establish a case – statements are never completely neutral. Even more importantly, witnesses often sign statements that they later realize were inaccurate or that they did not thoughtfully consider. For the same reasons, management-side attorneys often take only sparse strictly factual statements or do not get a signed statement early in an investigation.

Once the statement is in writing and signed – accurate or not – it will be used against the employer. So, while we wholeheartedly agree with an employer’s desire to fully cooperate, we generally recommend against supervisory employees signing a statement. Unlike non-supervisory employees, the supervisor can bind the company. They are your agent.

Non-supervisory employees are a different matter – it’s the employee’s decision and an employer should not interfere in any way with an employee signing a statement. Nothing more effectively destroys trust between an employer and investigator than even an appearance of discouraging employees from cooperating in an investigation. The sensitivity of managing hourly employee interviews is one reason why employers may later regret failure to consult with counsel.


Mentorship – This podcast shares a fascinating story of an immigrant’s success, and the importance of his mentors. We talk mentorship but often are not purposeful in our efforts. The Model Health Show TMHS 265: Creating Fit Bodies, Successful Mentorship and the Truth about Discipline – With Bedros Keuilian

Wellness and Healthcare – One doesn’t expect to learn about advances in stem cell therapy from a podcast including Mel Gibson, but this episode from the colorful Jo Rogan Experience podcast, with Dr. Neil Riordan provides a matter of fact update on efforts which may soon influence health and the burgeoning costs of taking care of an aging and less healthy workforce.

Input from Readers.

Lisa McGlynn is an outstanding attorney in our Tampa FP office and a regular speaker in the Tampa Bay and Central Florida areas, with a special interest in issues posed by medical marijuana. Lisa is also active in Fisher Phillips’ WILC, Women’s Initiative and Leadership Council efforts both internally and with clients and other attorneys. Please check out the WILC events hosted by our various offices. She also blogs regularly on our Gig Employer Blog. Lisa is smart and good on her feet. She recently sent me the following observations:

One recent interesting development of interest to me is that Vermont became the 9th state to legalize recreational use marijuana and the 1st state to do so via the legislature.  The stark difference between the states and the federal government on this issue continues to be confusing to employers.Although also not new, like many others, I related to Hillbilly Elegy. Many of our families’ histories may be a bit more “hillbilly” than elite, so it was of particular interest to me and those with whom we deal.

Although it is not a new book, I recently read that may be of interest to business readers is the Gift of Fear by Gavin de Becker. The book encourages readers to trust their instincts about situations and individuals, as well as giving specific helpful advice (such as the fact that liars often use too many details).  It covers many different scenarios (stalking, dating violence, etc.) but it has a whole chapter specifically on workplace violence thatwas fascinating.  In fact, whenever I have given a talk on workplace violence issues since reading the book, I mention it to the audience because I really think it is worth a read.


The Alienist – TNT’s new series shows promise. While not necessary, one may enjoy the show more if they have read Caleb Carr’s excellent book, _. The first episode seemed a bit poorly edited and did not have the big picture-feel we have come to expect from the great new series starting with Game of Thrones. However, the show found its pace in the second episode with solid performances and an engaging plot. However, what wowed me was the extraordinary recreation of the Guilded Age New York City through CGI and attention to detail in sets and costumes. Wowed me.

Britannia – This joint effort with Britain’s Sky Atlantic . and Amazon Prime is a bold and sometimes hallucinogenic effort to capture the mysticism and gritty details of the second Roman conquest of Britannia and its fierce Druid worshipping natives. The effort is rather unique and interestingly, some recent archaeological finds may overshadow the show. The acting is excellent and it’s a damned unusual effort. Warning – like GOT, no actor is safe, so don’t get too attached.


Posted in books and articles, government inspections, management and leadership, OSHA, podcasts/thought leaders, Uncategorized, wellness, workplace violence | Tagged , , , , , , , | Leave a comment

Howard’s Weekly Roundup – January 28

Thanks for the input on topics you’d like to see and on your own observations to reference in the weekly Update. We’ll also cover many of these subjects in the Podcast and two related domains will soon be up and involve a number of FP attorney and guests.

Please don’t miss the Reader comments at the end about topics important to them or observations about safety, employment law, books, podcasts and even music! The last one is three meaty pages of responses to wide-ranging questions.

This Week’s Labor, Employment Law and OSHA Legal Developments.

  1. Thanks to FP OFCCP/Affirmative Action partner Cheryl Behymer for this warning that in response to the Me-Too movement and focus on pay inequalities between men and woman, the OFCCP has announced that it will focus more on compensation disparities, instead of hiring disparities. Don’t assume that the Trump OFCCP will just go away.
  2. Will unions use the Me-Too movement and reports of sex harassment to target female employees for organizing? I pondered this question after reading the following fiery article: When Women Have a Union, We Don’t have to Walk in Alone.
  3. Employers continue to be hammered by Lock Out and Guarding Issues. Just this week’s headlines: New York Ingredients Factory Hit With $300K in Worker Safety Fines (following an employee losing a hand). OSHA Cites Gainesville Poultry Processing Company $300,000 for Amputations (related to machine guarding), and OSHA Cites Pallet Manufacturer $91,000 After Employee Injured by Machine. I know one of these employers and it is solid, which means that “good companies” get hit with OSHA citations. These common cases present a toxic mix of Repeat exposure based on ever-present issues, challenging guarding situations, and variance in different company sites management of maintenance, compliance and safety. #Workplacesafety.

This week we’ll post days for a two-part FP Webinar on Common Lock Out and Guarding Challenges and related issues.

Relevant News.

  1. Workplace Violence. Mass Shootings prompt employer focus on security, but the far more numerous single attacks gather less press. The Hospitality Industry presents a high number of security threats as reminded by the recent shooting of an Atlanta restaurant manager. Even upscale restaurants wrestle with protecting employees as they close out after the evening shift. AJC Article on Atlanta Restaurants’ responses.
  2. Preventing Catastrophes. At FP, especially in our catastrophe management Practice Group, we regularly remind employers that not all business catastrophes involve loss of life. Today’s news provided another example of how employment claims, whether valid or not, can damage a company’s reputation.

Yesterday, the WSJ ran an article on the amazingly successful casino developer Stephen Wynn about dozens of allegations of harassment. Apparently, the spark for this fire is his ex-wife and major stockholder’s suit against him seeking to eliminate limits on how she uses her company stock.

We’ll not get into the merits, but in order to illustrate the potential harm of these attacks, consider the WSJ’s description of a recent Wynn Companies securities filing which cited possible risks to the business:The company said, “If we lose the services of Mr. Wynn, or if he is unable to devote sufficient attention to our operations for any other reason, our business may be significantly impaired.”

Not surprisingly a later WSJ report stated that the report shaved $2 billion dollar off of the publically traded stock in one day. One assumes that the value will recover but the message was pretty clear. Protect your company.

  1. What’s up with DACA and Immigration Reform? The WSJ provided an excellent summary of what President Trump has proposed. DACA expires on March 5 unless Congress extends it. However, we’ll have fireworks before then with the budget extension only to February 8. (Good summary of the politics before rump’s latest proposal).
  2. Schools in at least 11 states have closed as the worst flu epidemic in nearly a decade intensifies. Everybody knows that this year’s Flu Season is unusually bad and oddly, next to the elderly is most affecting Baby Boomers. We’ve got about nine weeks to go and the flu and other respiratory illnesses are affecting business productivity.

ACTION POINTS. Ensuring consistent hand washing and getting sick employees to stay home are still the main thigs an employer can do. Also, use susceptibility to the Flu as an excuse redouble Wellness efforts and emphasize the need for good sleep. (See last week’s Roundup). Previous FP Blog Post 1 and Post 2. OSHA Flu page and NIOSH Flu in the Workplace page.

3. To better understand the problems with our current Budget and Debt process, I’ve pasted below two explanatory paragraphs from a UBS Newsletter sent me by an Atlanta UBS friend, Richard Grodzicki.

Broken Budget Process. Much criticism has been made of the budget process in Congress that requires the frequent need for the passage of temporary government funding plans (“continuing resolutions” or “CRs”) that often are accompanied by controversial issues. That criticism is on the mark—the congressional budget and appropriations processes for the most part have been broken over the last 40 years. Every year, Congress is required to pass (1) a budget, and (2) twelve separate appropriations bills that fund federal agencies and functions per the budget’s instructions. Since 1977, Congress has only passed all of its appropriations bills four times (yes, only four), which then forces the House and Senate to craft one giant spending bill for passage. This one bill is a big magnet for mischief and usually doesn’t reflect the kind of scrutiny that a budget funded by taxpayers deserves. This has been a problem regardless of which party has had control in Washington. Budget reforms have been offered and ignored by both parties, and perhaps this latest chaos will build some momentum for them.

Relationship with Debt Ceiling. We have received many inquiries on the connection between the need for Congress to extend the debt ceiling and the need to approve continued government funding. The two are separate measures and should be dealt with in separate votes. However, if the politics make it easier and the timing is right, they could be connected in the current debate over government spending. The government funding deadline of February 8 is approaching the separate deadline for extending the debt ceiling (most likely in mid-March), and the two could be paired if Congress wants to knock out two birds with one stone. This combination makes sense to us because most in Congress are eager to move to less contentious issues, but we are not predicting this will happen at this point.

Articles, Books and Podcasts This Week that are Helpful to Meeting Labor, OSHA and Employment Law Challenges.

  1. Employers tell me that they are getting serious about seeking Employee Engagement. Check out Kevin Kruse’ short practical Forbes article: 5 Things Every Manager Needs To Know About Employee Engagement.
  2. For your Wellness efforts and personal health: Listen to TMHS 264: The Facts About Your Dirty Genes: Methylation, SNPs, & Drinking Wine – With Dr. Ben Lynch from The Model Health Show: Nutrition | Exercise | Fitness | Health | Lifestyle in Podcasts.
  3. This Article provides an excellent list of podcasts which you may want to explore: 10 Podcasts That Will Make You Smarter |

Observations from Readers!

  • Comments from a Nationally-respected Twitter-savvy Woman Professional

#Books: Why Women – the Leadership imperative by Jeffery Tobias Halter. #fiction – American Gods.

#OSHA: concerns over shutdown effect and lack of leadership, even though Sweatt is doing a good job.

#Employment Law: (subtle) harassment and discrimination and lack of diversity, especially, in construction. #womensMarch2018

#WORKPLACE SAFETY: The very real idea that we overload workers, especially new hires with Too Much Information – TMI. Safety professionals should emphasize three or four key targets that get people killed – engage supervisors to skill train – get worker buy-in to focus on only 3 or 4 things daily.

MUSIC: From the Fires by Greta Van Fleet

#podcast – the series “Slow Burn” by Slate about Watergate. A different look at the downfall of a president and an introspective take about this scandal. For someone whose interest in politics began with this…pretty interesting.

  • From a Nationally recognized Safety Engineer and Expert Witness.

What do you think will be the biggest challenges to businesses in 2018?

Finding qualified labor to fill the workforces at all levels.

What challenges do you see employees facing in 2018? Unions? Career civil servants who enforce workplace regulations?

Competition for good employment.  Finding work that challenges them but also a work environment that satisfies them so that they are not always looking for the next job,

Do you have any recommendations to employers for improving workplace safety in 2018?

More management involvement in a real sense.  Good communication and interaction with all levels. Walk the Talk.  Provide good hazard specific training that truly addresses the hazards that their employees face.  Less emphasis on the “IN” training like OSHA 10 & 30.

What can employers do to get sued less or to avoid suits?

Develop good comprehensive programs, communicate them to all employees and fully enact, support and enforce those programs.

Do you think that harassment and related concerns will expand into all industries in 2018?

Yes absolutely.  The fear is that it will be politically motivated and not factually investigated.  Could be too much knee jerk reaction and a reluctance to look at both sides in full.  Also there may be a favoring to one sex.

What do you think makes a solid supervisor?

A person has good experience in the areas they supervise.  Has good communication and people skills.  Recognizes that they are supervisor not necessarily a friend to the employees.  Is trained in good supervisory leadership.  Is empathetic to situations and personal employee needs but also fully supports management’s philosophies and goals.

How could we improve supervisor development?

There needs to more training in supervisory processes.  Too many supervisors are not equipped to take on that role.  Training should include communication skills, relationships, some accounting/cost/business management.  Supervisors must also know that they have full support of management.  Management must provide funding and time for supervisors to receive and practice the tools they need.

How can we better use technology in safety?

Use of Field-based App Safety Systems can greatly improve communication, information transfer and ease the load on field supervision.  They can also provide the supervisors with tools and also”finger-tip” information to help them do their jobs.  Management can get real time information and more easily evaluate data to allow for more progressive decision making as opposed to reaction decision making.  Use of GPS and in cab technology in equipment can also enhance production and improve safety.

With that said, I believe that the biggest challenge is control of Social Media and employees recognizing that they CAN get along for a full work day with it.  I believe that Social Media will go down in history as a major impact in the deterioration of our culture, human relationships and personal well-being.

How can we more effectively maintain safety at multiemployer sites?

There needs to be more development of site specific plans that truly address the hazards and safety issues on their projects.  Proper responsibility and authority must be communicated to all contractors and then enforced.  Safety progress reviews need to be done weekly with all parties.  Planning for major activities, moving into new phases or dealing with special situations should always be done and communicated.

More team efforts by all contractors.  Owners, CM’s GC’s and also A/E’s need to take an active role in design, planning and executing safety oversight on multi-employer sites.  But all subs and employees must understand their responsibilities and accountabilities.  Job site orientation that communicates all of the above must be properly done before employees start work on sites.

How do you think that employers can better engage employees and create a workplace that motivates employees, as well as making a profit?

Recognizing the employees, especially experienced ones have something to offer.  Involve employees in development of site processes.  Bring back better mentoring programs for new employees.  Use of committees can be affective if NOT too big and if they actually meet and set goals and then assure their execution.

Can one teach judgement and character in the workplace?

Some of those traits must be engrained within the person.  But some can be trained with good training programs, follow-up on that training, coaching and correction where necessary.

Can you share any of your personal goals for 2018?

Start to slow down and enjoy life more for me.  Beyond that, that I continue to stress the processes above and that I use my exposure and training interaction to convince companies to work toward higher levels of safety culture not just rules compliance.

Name one or two (or three) Books or Podcasts that genuinely influenced you in 2017?

Nothing specific.  But a book called The Collaborative Way was insightful.

What electronic or paper newspapers, journals and sites do you regularly read?

Local paper and news when home, USA today when traveling some WSJ.  Numerous websites but also OSHA, ASSE, NSC when safety related.

Describe any mentors, advisors, or current/former supervisors who helped make you who you are and give examples of something they imparted to you.

Many through my career who have taught me how to work with people.  I still fondly remember very early in my career when I was actually the supervisor, a foreman, actually two, who at an emergency over four days taught me about calm decision making, pride in your work, thinking on your feet, doing with what you have not what you think you should or wish you have.  I have always looked at my father for giving me traits of hard work, the ability to fix things and solve problems.

What steps are you taking to create a meaningful legacy and why?

Just doing my work.  Trying to help everyone I come in contact with to be safer and better than they were before.  Ultimately, trying not to turn too many people off.

If you have working age children, what skills and advice are you sharing, other than rejoicing that they are off your payroll?

Good work ethics.  Look for where you can do more not just enough.  Always seek to learn more.  Don’t believe everything you hear or see, especially from one source.  Take the initiative to learn and evaluate opposing positions.  Respect people and their views even if different than yours.

Be proud of your opinions and goals but recognize that they may not be shared by all so be sensitive to how you express them.  Recognize that you are valuable to others and employers.  But also recognize that in today’s world, you can fall into disfavor very quickly by your adverse actions.  Be yourself, not one others want you to be.

Name one or two wines, beer, scotch or bourbon impressed you in 2017?

New Glarus Spotted Cow beer.  Good White wines, a reintroduction to Makers Mark.

List any activity you devised for your spouse that was a homerun in 2017? (I suspect that the responses will be limited!).

At my age and length of marriage there was nothing new.  Maybe that’s the point!


My Observations on Books, Wine, Scotch, Beer, Movies and Books.

#Movies. I am addicted to the Red Sparrow Trilogy, devoured the first book and I’m on the second volume. Without sacrificing suspense and action, the ex-CIA author focuses on the nuts and bolts of spy craft, recruiting double and triple agents, bureaucracy, etc. I hope that the soon-to-be-released Movie does the series justice. #Books.

My wife and I binge-watched the first episodes of Suits. The series is not exactly plausible, although the attitudes of large NYC law firms is spot-on, but the show is hilarious and the characters likeable.

Can’t wait to see The Death of Stalin. The trailer suggests that the brilliant British cast will cause convulsive laughter with the manic but fairly accurate portrayal of the days following Stalin’s death and his minions scramble for power. Sometimes, reality provides the best humor.

#Nonfiction Book I’m Reading: Insight: The Power of Self-Awareness in a Self-Deluded World by Dr. Tasha Eurich. Relevant to Supervisor Development and understanding some of the causes of harassment and bad behavior in the workplace.

Next Reads: Deep & Wide: Creating Churches Unchurched People Love to Attend Tom Parks, Andy Stanley. I can’t wait to read how a shy introverted guy has developed a megachurch that actually works for Christians and non-Christians alike. Dirty Genes: A Breakthrough Program to Treat the Root Cause of Illness and Optimize Your Health by Ben Lynch ND. Follow-up to the earlier mentioned podcast.

#Wines: Smitten this week with the wines of Blackbird Vineyards.




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A Snarky Guide to the Eclipse, Worker Safety and a Homage to The Day of the Triffids


Tomorrow is the much-awaited Eclipse and employers are beginning to worry that they may not have taken all appropriate steps to protect their employees. Shockingly, OSHA does not maintain a Workplace Eclipse Safety Standard. Accordingly, employers should analyze the hazards presented by an Eclipse as they would any other hazard at the workplace. Even if spiders, snakes and poison ivy are universal, employers nonetheless protect their employees from these hazards when present in the workplace.

  1. Assume that employees will not exercise common sense and use good judgment. As an example, the most common reaction of a diner when told that their plate is “very hot,” is to … you guessed it …. Touch said hot plate.
  2. Education is the essential first step for every employer. Every news outlet in the free world is talking about Eclipse safety, but do not assume that your employees read the omnipresent recommendations. Below are just a few decent sources:


3. Determine positions and job tasks that may reasonably be exposed to the hazard. Drivers and construction workers outside, servers at rooftop lounges, etc.

4. Determine the seriousness of the exposure and appropriate responses.

5. Educate them regarding the hazards present at your worksite or with their jobs and provide instruction and/or Personal Protective Equipment (PPE).

  • Maybe instruct the employees to go inside and don’t look at the darned Eclipse during the critical periods?
  • Provide appropriate glasses? This decision may be a philosophical decision rather than a safety decision. I don’t believe that you want employees working, driving, or operating equipment while wearing special glasses.
  • And if you do decide to provide special glasses, make sure that anything you provide as an employer is absolutely properly certified and approved. Reports are rife about inadequate or non-certified glasses making an appearance. From the August 18 Athens Banner Herald:

Some schools canceling classes or keeping pupils inside due to non-certified eclipse glasses

  • And while there are reportedly safe homemade/jury rigged ways to watch the Eclipse. Employers don’t need to recommend them.
  • Personally, the Pinprick Method or a homemade Camera Obscura sound pretty cool to me, but not as an employer recommendation.

6. NOTE: Filmmakers, news crews and others have a higher duty because their work may involve observing, studying or filming the event. Of course, these groups are better equipped in terms of equipment and special expertise, but should not become casual or sloppy. As an analogy, more experienced highly skilled construction workers fall to their deaths each year than inexperienced rookies. Superior knowledge and frequent exposure breeds contempt. Don’t assume that scientists and photographers do not need to be reminded to NOT take short cuts.

The Day of the Triffids.

When I was 12, I read John Wyndam’s 1951 groundbreaking sci-fi book, The Day of the Triffids, which scarred me for life with regard to Eclipses and other fun viewable solar displays. Don’t confuse the thoughtful sci-fi thriller book with the entertaining but not nearly as good 1962 movie.

In this chilling book, everyone who wakes up the day after watching an amazing solar display is – you guessed it – blind. This would be bad enough, but it seems that some years before, scientists discovered and began improving these nasty plants, which produced highly useful products, but also grew to about six to ten feet high, shuffled about, and had a deadly stinger with which they could strike prey from six or seven feet away. Oh. And they were nice to look at – this conversation was presumably overheard at a local botanical garden: “look dear at that colorful and beautiful death dealing flora from the bowels of hell! Can we get one for our garden so that baby Floyd can play in its colorful shade? Lowes has them on sale!”

So, pretty soon, acres were devoted to cultivation of Triffids or to charming city parks and gardens. Stingers were regularly trimmed off and the wondering plants were chained to steel spikes driven into the ground. What could possibly go wrong! Yep; nothing accept a worldwide instantaneous plague of blindness, thus guaranteeing that the Triffids get free, grow back their stingers and become the apex predators. Since they are plants, reproduction is easy and apparently the critters had decidedly crappy attitudes once they formed large freely roaming murderous hordes.

I may overcome my irrational fear of solar displays and enjoy tomorrow’s display … or I may hide in the basement huddled with firearms, MREs and cans of Roundup. We’ll see.




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President Trump, Tweeting, Safety, Harassment, Judgement and Will.

Trump, Tweeting, Safety, Harassment, Judgement and Will.

The President’s Tweeting dominated our discussions throughout June, with many people asking why does he Tweet? Was it a crafted strategy? A reasonable response to a biased media? A lack of Judgment? Emotional Outbursts?

While the media has not handled this Administration well, I do not believe that the President’s Tweeting has advanced his agenda, and has in fact further coarsened politics. Only a modest percentage of supporters seem to like his tweeting approach. As a regular Tweeter, I curse the difficulty of making nuanced comments in only 140 characters, and therefore I think that most subjects handled by the Leader of Free World cannot be addressed in one sentence.

If this Tweeting is a result of poor judgment, we see similar actions every day in the work world. Why do executives and laborers alike make often stunningly bad decisions?

Why do ALL of us make bad decisions and wrestle with self-discipline? January Resolutions are a sick source of humor. Unfulfilled to-do lists haunt us. Even the Apostle Paul conceded problems with making the right decisions, albeit from a spiritual standpoint:

I do not understand what I do. For what I want to do I do not do, but what I hate I do.

Romans 7:15 (NIV)

The question of why do we make bad decisions is not an academic subject to me. I’ve handled over 560 workplace death cases and catastrophes, many of which involved often inexplicable bad employee decisions.

Despite years of public litigation and employer training, we continue to see powerful executives commit colossal blunders involving female employees. Most of these incidents involved people making bad decisions … or to use a term from another time, not exercising their Will.

First we had the Fox Roger Ailes controversy, and then Bill O’Reilly was fired from Fox News amid troubling allegations of recurrent sexual harassment. Then, while processing these seismic developments at a major media outlet, we see a major shakeup at pioneering Uber after an internal investigation involving their workplace culture.

Although it received less press, I saw an article the other day about someone hanging a noose in the workplace as a supposed “joke” with African American coworkers. There is no more explosive action in the workplace. I’ve written on this topic before.

One is tempted to exclaim, are we making any progress in workplace culture?

To me, an equally imperative inquiry is why do these successful, often innovative people make such horrendous bad decisions? 

Even more importantly, why do normal people remove a guard on an operating machine, not tie-off, or cut corners in day-to-day ethical decisions?

Enough questions. Let’s talk over the next few posts about why normal people make poor decisions that translate into workplace fatalities, harassment claims, toxic workplaces or embarrassing Tweets and Facebook posts.

He’s an Idiot is not an Adequate Explanation for Bad Decisions.

I’ve written about validated studies showing a correlation between bad decision-making and fatigue, lack of sleep, and low sugar. See also Part II.

Let’s talk about the effects of stress, mental exhaustion and a corresponding lack of will or “self-regulation.”

Is the Issue a Problem of Willpower?

I have been impressed by the book, Willpower: Rediscovering the Greatest Human Strength, by Roy F. Baumeister, Professor of Psychology, Florida State University and NYT Journalist John Tierney.

From the NYT book review:

Together with intelligence, self-control turns out to be the best predictor of a successful and satisfying life. But Baumeister and Tierney aren’t endorsing a return to a preachy puritanism in which people are enjoined to resist temptation by sheer force of will and condemned as morally irresolute when they fail. The “will” in willpower is not some mysterious “free will,” a ghost in the machine that can do as it pleases, but a part of the machine itself. Willpower consists of circuitry in the brain that runs on glucose, has a limited capacity and operates by rules that scientists can reverse-engineer — and, crucially, that can find work-arounds for its own shortcomings.

I found Willpower to be far more than another self-help book. This book addresses many of the problems being played out in our news. From the article, The Power of Self Control (Baumeister):

The practical significance [of Willpower] is enormous. Most of the problems that plague modern individuals in our society — addiction, overeating, crime, domestic violence, sexually transmitted diseases, prejudice, debt, unwanted pregnancy, educational failure, underperformance at school and work, lack of savings, failure to exercise — have some degree of self-control failure as a central aspect.

I was especially intrigued by the discussions of how our will is depleted, which are also discussed in the above article:

Can you walk us through a typical example of willpower depletion?

A dieter may easily avoid a doughnut for breakfast, but after a long day of making difficult decisions at work, he has a much harder time resisting that piece of cake for dessert.

Another example might be losing your temper. Normally, you refrain from responding negatively to unpleasant things your romantic partner says. But if one day you’re especially depleted — maybe you’re trying to meet a stressful work deadline — and the person says precisely the wrong thing, you erupt and say the words you would have stifled if your self-control strength was at full capacity. What do you call this process?

My collaborators and I use the term “ego depletion” to refer to the state of depleted willpower.

And don’t lose hope, willpower, like muscle strength, can be recovered and increased:

Self-control resembles a muscle in more ways than one. Not only does it show fatigue, in the sense that it seems to lose power right after being used, it also gets stronger after exercise. (The fatigue effect is immediate; the strengthening is delayed, just like with muscular exercise.)

Baumeister’s article, Self-Control, the Moral Muscle.

Read the linked articles and we’ll discuss the role of Willpower and ego depletion in employment law and safety challenges in our next post.






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Ft. Lauderdale: Are Employers Acting on What They Learn from Mass Shootings?


After every public shooting, we discuss how to prevent and better respond to the next active shooter, but each subsequent shooting event suggests we are not acting upon knowledge gained.

Wrestling with Mental Health and Gun Possession

On a policy level, if this shooter does turn out to be acting based on mental illness, we must consider steps to limit the possession of guns by individuals suffering from mental illness. I am a gun owner and I am very protective of individual privacy rights, but many of the mass shooters were known to suffer meaningful and often violent mental health issues, and yet were permitted to continue to own guns. California implemented a law last year which created a process for concerned family members or other individuals to approach a judge to obtain a temporary order until further investigation was carried out. Other states have somewhat similar laws, but only law enforcement officials can implement the process.

There are obviously risks in developing such legal processes. I’ve written a great deal about the need to eliminate the stigma in the workplace for individuals suffering from depression and other mental and emotional issues. Few of these individuals present a threat to others, and are suffering from an illness, which should be treated with no more stigma than any other health challenge. Employers should encourage them to seek help.

There are other concerns. Some individuals might use such laws as a way to hurt someone’s reputation. Angry individuals in marital and custody disputes might misuse such laws as a club. Some might view any interest in firearms or hunting to suggest a mental illness. But we deal with balancing issues in legislation every day

Safety at Work/Safety at Home!

Many employers are devising on programs to encourage workers to act safely at home. Bad judgment doesn’t start or stop at work, and we can only create a true safety mentality by making it a part of life. Employers are working to inculcate safe habits and activities ranging from driving to home repairs to hanging Christmas lights. Train employees to avoid violence away from work, including while travelling. Maybe even provide basic self-defense learning opportunities. EHS Today Article.

Teach and Reteach Employees to Continuously Practice “Situational Awareness.”

Look for ways to teach employees to be situationally aware at work, and then expand to outside scenarios. I am sure that once the full details of the Ft. Lauderdale shooting are released, we will learn that many of the victims lay on the floor or stood still in shock, which made them easy targets for a methodical shooter. Uninformed reflex action is often wrong.

My past experience in Full Contact fighting, especially with younger quicker opponents, made me very aware of my environment, and that alertness has assisted me in driving on Atlanta interstates and in avoiding unsafe situations.

One will not develop situational awareness solely by watching a Run Hide Fight video or an attending an occasional active shooter class. Investigate simple exercises and training routines which might remind individuals of how to continuously evaluate everyday situations and remain alert. Such a mindset easily transfers over to workplace behavior. Expand you training on “Distracted Drivers,” Avoiding Struck-bys, and PIT training. And if you are in healthcare, especially home health occupations, provide detailed training on how to be sensitive to risk. Have run … use VR and online gaming!

I’ve Linked to a post by Active Response Training as an example of down in the dirt tips for surviving an airport shooter: How Not to Get Killed in an Airport.  Interesting Ted Talk on staying Calm When Stressed.

Include Basic Trauma Instruction and Materials in Your First Aid Efforts.

We will probably soon see FEMA, DHS, and other Federal groups endorse enhanced first aid training and materials for trauma response. About 80% of mass shooting victims would’ve had a chance of surviving had someone on site had basic training in trauma response and available materials.

One can obtain a basic trauma kit for about $50 to $200 at an REI or online at multiple sites. Here’s one at Amazon for $54, although it might not be adequate for your needs. I keep a basic trauma pack in my vehicle first aid kit. Every employer should consider adding such a package to at least some of its first aid kits.

Please take the time to go to DHS’ Stop the Bleed site.

First Aid Training is an Opportunity, Not a Burden.

Instead of viewing first aid training as a burdensome obligation, view first aid training is a meaningful opportunity to limit the severity of workplace injuries, as well as create more of a sense of community and team. OSHA interprets its First Aid standard 1910.151 to require an employer to provide first aid training if emergency response will take more than three to four minutes depending on the industry setting.

Most employers provide some First Aid training. Why not offer to at least some interested employees, more than the usual first aid and CPR course? A wide range of training is available … and useful.

  • When one goes on the two week Boy Scout Philmont high adventure backpacking trip, at least one member of the group must undergo the full one or two weekend Wilderness First Aid training. The Wilderness First Aid training is premised on the fact that the group may be unable to get to a medical provider for several days. I valued my course experience and have used it in many context.

There are obviously many other steps employer can take and we regularly write about developing a full program to respond to workplace violence, including active shooters, along with other emergencies. As an example, have you recently looked at your Employee Action Plan (EAP) and related training and procedures? Recent FP Post on Workplace Violence planning.

Learn from each incident … and act.



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