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.




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
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