My Essential OSHA “Enforcement” Posts This Year.

These are the links I sent to F & P attorneys after recently conducting an in-house session on our workplace safety practice.  The focus of the links was not on building a safety culture, which is my favorite topic, or on the various labor and employment topics I regularly write upon.

These posts only deal with 2013 OSHA enforcement issues and also do not include posts from other great sites, such as TLNT, EHS, BLR, etc..

OSHA Inspections

The current Administration is more focused on penalties than on cooperative efforts with employers.  The biggest change has been the increase in big penalty cases and the Department of Labor’s aggressive effort to “regulate employers by shame.”  Many employers with multiple locations do not realize that they are at risk of “repeat” citations with six figure OSHA penalties for routine items that reoccur over a five (5) year period at any of their numerous locations.  A missing ground plug or one employee who didn’t receive Hazard Communication training might cost an employer $70,000.  For this reason, I have written a great deal this year about managing OSHA inspections and challenging citations.  My primary focus is always to guarantee employee safety, so even if you contest OSHA citations, make sure that you have abated any hazards and instituted best practices.

 Whistleblowers

OSHA deserves a larger budget and more personnel.  The Agency simply does not have adequate resources to satisfy its core safety obligations.  Nevertheless, OSHA continues to shift money and resources to encourage whistleblower claims and to the investigation and enforcement of the 20+ whistleblower laws which the agency investigates.  OSHA whistleblower complaints are much more involved then the typical EEOC charge and generally involve on site investigations.  Moreover, even as employers improve supervisor training to avoid discrimination and harassment complaints, they may be adequately educating supervisors on how to avoid retaliation claims or the appearance of such claims.

Interestingly, more people have read my post about “Cussing out your employee may get you sued by OSHA” then any other post.

Documentation

Lawyers are fond of saying that “if it isn’t in writing, it didn’t occur.”  This year I emphasized to employers that they must better document safety-related discipline and the crucial on-the-job training which follows new employee orientation.  However, another area where a lack of documentation hurts the employer involves abating OSHA citations.  We often discover that employers did not document the changes or actions taken in response to OSHA citations.  Even more commonly, employers who purchase facilities or merge locations may lose documentation and institutional knowledge of changes made.  An employer does not want to appear to have ignored their obligation to correct cited hazards.

Remote Employees

The current economy has resulted in a vast increase in the number of employees who work away from the employer’s business site, often by themselves on customer property.  Consider the number of technicians and specialist traveling by themselves to work at a variety of employer sites.  Food distribution drivers may use pass-keyes to unload product in the wee hours of the moment when no one is present at the restaurant.  Workplace violence statistics show that you are far more likely to be assaulted as an emergency room nurse, home health worker, or third shift worker at an isolated facility, than you are to be a victim of a shooting by an enraged former employee.

Civil and Other Claims Related To OSHA Events

I am fond of reminding employers that the OSHA inspection and citations may only be the “appetizer” to later more expensive civil, regulatory, and even criminal actions.  Therefore, employers should not focus only on OSHA or MSHA when employees are killed or high risk legal exposure is presented, such as on  a multi-employer site.

The above post also discusses how third parties can use employer safety information to attack an employer.  Employers should be especially sensitive to this issue because of OSHA’s quiet interpretation last Spring stating that community organizers and other parties might legitimately have a right to accompany OSHA on site inspections.  Combine this announcement with OSHA’s efforts to create new recordkeeping obligations requiring employers to electronically submit injury data, and you have many more opportunities for a company to be harassed or embarrassed.

Combustible Dust

Since spending 7 days straight at the Imperial Sugar Explosion site, I have worked with an ever-increasing number of employers to improve combustible dust compliance or to defend them in OSHA inspections and related actions.  Many employer still do not realize that their production processes may present an explosion hazard or require expensive modifications pursuant to National Fire Prevention Association (NFPA) and other consensus standards.  One report estimated that employers spent an average of $1 million per facility in complying with combustible dust requirements after an OSHA inspection.

We hope that you find these posts helpful, and I encourage you to read our other F & P Workplace safety posts which focus more on establishing the type of safety culture which prevents workplace injuries and illnesses, OSHA citations, and related legal issues.

Have a wonderful end of the year and a prosperous and safe New Year.

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 civil and criminal exposure, combustible dust, discipline and discharge, discrimination, emergency response, food processing, harassment, OSHA, public attacks, recordkeeping, repeat items, Washington and tagged . Bookmark the permalink.

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