Howard’s Weekly Wrap Up – March 25 – Part I (Practical Safety Tips, New CA/WA Laws, and More.

I’ve been crazy busy lately, so actually this Wrap Up would be better titled “Past Three or Four Week Wrap Up.” Last Fall saw a frustrating and still unexplained spike in workplace deaths. OSHA has six months in which h to issue citations, so the last three weeks have involved five OSHA Informal Conferences and travel to California, Pennsylvania, Florida and parts in between. Throw in a number of recent multiple fatality cases, and my writing had to take a break. So hang on for a multipart effort to catch up.

Practical Observations.

When I started these updates, I was eager to share day-to-day observations we at FP observed in our cases and from employers in the news. Occasionally I’ll share observations and lessons about bad or what you may cheerfully view as ‘dumb employers.” However, I generally focus on good employers because I am blessed with solid clients and know more about industry leader companies than bad players … and it vital to remember that good employers who focus on safety and good HR still see breakdowns on individual site and plant level. Never … ever … assume that your employees or supervisors will not make mistakes ….

  • Safety Minutes – I’ve previously mentioned the value of properly utilized Safety Minutes. Many employers require foremen and supervisors to start pre-work meetings with a Safety Minute; usually a topic provided by the safety manager. More enlightened employers will ask executives to open meetings with a safety minute. Employers who impress the heck out of me, have CEOs who actually are passionate about opening every meeting with a safety minutes … and not because their labor lawyer told them it was a good idea. I rarely reference a client by name, but this time I’ll do so, Scott Anderson has humbled me by faithfully demanding a safety minute before every meeting … and the excellent Boilermakers Local __ assured me that “he’s for real … he does this at every meeting … it’s not just for show.” Another CEO, Randy Hall, upon hearing me talk about Scott, felt vindicated for working toward the same goal. Best of all these safety minutes focus on safety lessons outside work, which of course also translate to increased safety awareness at work.

My personal action point? My client and Practice Group members had best expect me to become more faithful in using Safety Minutes.

The point is not to get you to use Safety Minutes, but to “want” to use them in order to model safety to the rest of the company. Employees and frontline supervision have an ability to sense when their leadership is serious about safety.

  • Documentation – I know that employers are tired of attorneys harping about documentation, but employers so often train employees on safety requirements, or have reason to reasonably rely on past experience, but the employer does not document the on-the-job site-specific training or the training at past jobs or employers. Or the employer does not document how they determined that they needed respirators and the respirators used are appropriate. Similarly, no matter how detailed the form, employers wrestle with getting frontline supervisors to thoughtfully complete these daily pre-work forms, briefings, or JSAs. Forms with numerous blocks to check-offs get pencil whipped, but even if an employer requires supervisors to write daily tasks, hazards, and steps, the employer must stay on top of their efforts to ensure consistency. I could restate this message every week and it would never become redundant …. Practice Pointer? Periodically review construction daily JSAs or pre-work meeting forms or weekly plant safety walk-arounds. Look to see if every day or week’s form looks the same. Work to move away from checklists and get the supervisors to fill in daily details.


  • Embedded Work – We lose a great deal of sleep concerned for contractors who perform embedded work at a customer’s site, such as at outages or annual shutdowns. Although the courts and the OSHRC have inadequately defined the diligence required of contractors working on a customer’s site, their duties “should be” as follows:

(. . . it is impossible for a particular employer to anticipate all the hazards which others may create as the work progresses, or to constantly inspect the entire jobsite to detect violations by others”). Gulf States, Inc., 7 O.S.H. (BNA) ¶ 2152 ALJ Nov. 30, 1979) quoting Grossman Steel & Aluminum Corp., 4 OSH (BNA) ¶ 1185 (O.S.H.R.C. May 12, 1976).

To establish constructive knowledge of the hazard. “The test is whether the Secretary established that [Jacobs] could have discovered the violative condition through the exercise of reasonable diligence.” Jacobs Field Services of N. Am., Inc., & Its Successors, Respondent, 2015 O.S.H. Dec. (CCH) ¶ 33445 (2015)

The reality is that OSHA Area and Regional Offices will not engage in this nuanced an analysis. OSHA WILL TAKE THE POSITION THAT THE EXPOSING EMPLOYER MUST ASSESS AND DETERMINE THE HAZARDS AND TAKE APPROPRIATE STEPS … PERIOD. OSHA will not consider the fact that no contractor, no matter how sophisticated, cannot have the same awareness of hazards and understanding of a complex refinery, power plant or chemical plant as the customer/owner. Accordingly, a contractor must take and document their reasonable steps taken to evaluate and confirm site employer confined space entry, LOTO, and hazard assessments. OSHA does not care that the contractor may be required to adhere to the site/customer’s procedures and assessments. OSHA does not care that the contractor may be unaware of a single valve failure from 300 valves. OSHA does not care that no other industry employer has found this hazard in this setting. They will site you as if the OSHAct did not say that OSHA has the burden to prove that the employer knew of the hazard or “should have with the exercise of reasonable diligence.’

My Action Points? Recognize that no employer can rely on another employer to meet their safety obligations with regard to their employees. Then, document the reasons why you found the site’s assessments and required procedures to be correct. If you have doubts, push the customer a bit. More often than not, a good customer’s assessments and procedures may be correct and with their superior knowledge, the customer should know. Document your reasons and steps, and if challenged, do not be reluctant to challenge OSHA’s refusal to recognize that an employer’s obligation is NOT to be omniscient, but to exercise due diligence.


Legal Updates – Part I.

  • Where to start …? Let’s go by sheer volume, which means that reliably liberal Washington State gets the prize for three new employment laws:


March 15, 2018 by Benjamin Ebbink

As we reported in January, after nearly six years of discussion and debate, the Cal/OSHA Standards Board (Board) approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.”  The final regulation was recently approved by the Office of Administrative Law and will be effective July 1, 2018.

More »

Keep in mind that an essential point to this regulatory development is that this regulatory effort is part of a nationwide effort by UNITE-HERE and other unions to use safety as a wedge between employers and employees and to organize them … and it works.

Wine, Movies, Books, Podcasts, Restaurants and More.

  • The Prisoner (2016). I bought a case of this stunning Red and I’m already ordering two more cases for my own consumption and gifts. This wine is an incredible value ($35 – $50 retail) for a complex taste. Thanks to Jeff Trump at Sandy Springs’ Brooklyn Café for getting me to revisit The Prisoner. Jeff has come close to converting me from Old World to California Reds.

From Jeff: The Prisoner is a modern-day wine success story, launched by Orin Swift founder Dave Phinney in 2000. Phinney crafted a contemporary version of the California field blend—Zinfandel with portions of Cabernet Sauvignon, Syrah, Petite Syrah and Charbono.  The Prisoner was inspired by the “mixed blacks” first made by the Italian immigrants who originally settled in Napa Valley. The Prisoner is now the most recognized Napa Valley red blend, leading the resurgence of interesting blends by incorporating Zinfandel with the unlikely mix of Cabernet Sauvignon, Petite Syrah, Syrah, and Charbono.

  • The Frothy Monkey. The name alone of this Chattanooga/Nashville hangout warrants praise,but the Chattanooga location at the restored Chattanooga Choo Choo site hit a home run on funky/easygoing atmosphere, great staff, and creative brunch food. Also excellent coffee, hot tea, and a sticky roll to kill for. Sunday Brunch was a casual and plain damned fun outing.


LA in general, and Santa Monica in particular boasts countless great brunch spots. Regrettably, some restaurants with views rely on the gorgeous views and let quality and innovation slide as to the food. Not so this delightful find on top of the Huntley Hotel (a street behind the outstanding Fairmont Miramar). The food is fresh and innovative with fun California and Mexican twists, service is impeccable, and the view toward Malibu is as advertised … stunning.

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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