Worst Case Scenario – National Claims and a Painful Ergonomic Settlement

This is a sobering Blog.  There are legitimate workplace safety concerns involving ergonomic issues in many industries, but how would you like to be on the receiving end of the attacks described below?  Let’ discuss the most recent development in a multi-year attack on a respected hospitality business. 

Pasted below is an excerpt from a UNITE-HERE website announcement of  a major hotel chain’s settlement of one the many OSHA ergonomic complaints filed against its properties by employees associated with UNITE-HERE’s “Hyatt Hurts!”  group. 

According to the Union, the property must take the following steps:
• Conduct a “job hazard analysis” using ergonomic principles to evaluate housekeeper tasks for unsafe or unhealthy exposures related to musculoskeletal disorders;
• Establish a “Housekeeping Committee” to discuss and make recommendations related to housekeeper safety; The Committee will include at least 8 employees, half of whom must be non-management housekeepers chosen by their co-workers;
• Provide housekeeper safety training programs on injury reporting and correct use of ergonomic interventions;
• Ensure availability of bed-tucking and long-handled tools and modify current housekeeping carts;
• Explore the feasibility of reducing the difficulty and number of bed-making tucks, and present findings to the government.
Bedmaking tucks are associated with increased mattress lifts, awkward postures and finger and wrists sprains.

UNITE-HERE has waged this near-war against Hyatt for several years.  According to Hyatt, the effort is part of a brutal strategy to organize non-union properties or to bring pressure on unionized properties for contract and staffing concessions.

First, UNITE-HERE obtained Injury and Illness data for properties (300 Logs or comparable materials), involved researchers, and then simultaneously complained to Federal-OSHA and individual State and Federal-OSHA offices.  The group  generated a barrage of press attacks, political pressure, and alliances with third-party groups. The Union and related groups heavily focused on housekeeper safety issues and the fact that so many of the affected employees were Latino or of other races and nationalities. Below is an excerpt describing the chain’s so called bad habits (could similar claims be “claimed” on another employer unfortunate enough to be so targeted? There may always be some issues, but is this fair, accurate or reasonable? Chilling thoughts…):

According to excerpts from the Union’s website, housekeepers have “crushing work loads.”  The website continues:

• Work speed-up. Some housekeepers clean up to 30 rooms in an 8-hour shift, leaving only 15 minutes to clean a room. This requires rushing that can lead to serious injury and even permanent disability.
• Even the federal government thinks there’s a problem. OSHA recently issued a company wide letter to the chain warning it of the hazards its housekeepers face on the job. This is a first for the hotel industry.
• And the experts agree. In a study published in the American Journal of Industrial Medicine examining a total of 50 hotel properties from 5 different hotel companies, Hyatt housekeepers had the highest injury rate of all housekeepers studied when compared by hotel company.
• Citations issued nationwide. OSHA or its state counterparts have issued 18 health and safety citations against Hyatt at 11 hotels and 3 citations against one of its housekeeping subcontractors with over $100,000 in proposed penalties.
• Adding insult to injuries. It took the lead in lobbying against legislation in California that would make housekeeping work safer.

Federal OSHA took the rare step of issuing a National Hazard Alert about these alleged ergonomic and other safety concerns. Hyatt responded with an articulate public defense. Some bloggers, congressional representatives and others have been highly critical of the attacks on the hospitality chain.

Federal-OSHA is wary of pursuing an ergonomic standard and has been reluctant in all but a few industries to pursue ergonomic citations under the easily challenged 5(a)(1) General Duty Clause process. UNITE-HERE, on the other hand, has provided a blunt example of how OSHA, a union, or any third-party organization could pursue ergonomic claims as an end in themselves, or as a form of the increasing corporate attacks we have witnessed since the Occupy Wall Street movement.

As I have explained in various articles, all employers, but especially hospitality employers, should review their work practices and safety compliance, as well as policies and procedures related to maintaining a satisfied non-union or union workforce. Focus also on policies related to electronic communications and to property control; issues which are especially challenging for retail, hospitality and food service employers. As you know, the NLRB has aggressively attacked many employer policies (although due the recent “recess appointment decision,” some of those decisions may be thrown out).

Restaurants are an especially appealing target, although they present unique challenges to a union bent on organizing them. The SEIU has been trying to develop effective organizing efforts against restaurants for a number of years. 2012 saw an all-out campaign against fast food restaurant workers in New York. Hospitality employers use of contingent workers has also come under attack by the AFL-CIO and its affiliates.

Read my other articles for more concrete steps, including responses to the special challenges faced by hospitality, restaurants, retail and other employment sectors. At a minimum:

1. Review your 300 Logs and other data and work to address patterns of injuries, including ergonomic related claims;

2. Review and revise policies relating to professionalism, electronic communications, and property access;

3. Review and revise safety incentive plans in light of OSHA’s aggressive current attacks.

4. Focus even more on developing and maintaining a workforce that does not feel the need o listen to third-party pitches.

5. Correct all safety hazards and potential OSHA violations; especially including the “low hanging fruit”-type items with which restaurants, hotels and retail employers must deal.

6. Consider when you last were visited, received a complaint or even thought about OSHA… you probably need to train properties about how to handle a OSHA complaint or inspection.

Few employers outside of the hospitality industry have followed these efforts, but having seen them respond to retail employers and employers in visible positions or whom deal with the Federal government, they greatly concern me.

Howard

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in aging workforce, concerted protected activity, cultural changes, employer policies, government inspections, hospitality, incentive plans, OSHA, retail, social media, union organizing, unions, wellness, workers comp and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Worst Case Scenario – National Claims and a Painful Ergonomic Settlement

  1. great post, very informative. I’m wondering why the opposite specialists of this sector don’t understand this.
    You must continue your writing. I’m confident, you have
    a huge readers’ base already!

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