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 ….


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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