What Can the Encyclopedia Teach us About safety and HR?

Posted on September 21, 2013 by mavity2012

 The New York Times and other publications are running articles pondering the end of the written version of the Encyclopedia Britannica and what that says about society.  We were a “World Book” family, but I have waxed nostalgic about growing up in the 60’s in a small Georgia town where the encyclopedia was the only way to resolve family disputes or whip out a quick paper.  No wonder families dropped a small fortune to proudly display those tomes.

By now you are thinking what the heck does the encyclopedia have to do with safety, and has Mavity lost it?

 Day to day events give us wonderful analogies, examples and source material to more effectively run our businesses, maintain a safety-driven culture and make labor lawyers unnecessary.  “Thinking” is a declining art, even though creative musings are often at the root of entrepreneurial success or even the twisted arguments I sometimes successfully devise to thwart my clients’ foes.  So indulge me.

Lesson #1 … the internet provides safety and HR professionals and endless supply of readily available tools and information that the “Mad Men” generation of executives never would have believed.  Although I utilize many paid update services, I rely on OSHA.gov and other government sites for initial research and am stunned by the legal briefs, articles and policies I find through Google.  Even better, I follow through twitter and email about 200 sites, publications and thinkers, and find practical materials analyzing why employees do foolish things and useful ideas to improve employee engagement or avoid harassment and retaliation claims.  After almost 500 fatality cases, I am passionate about determining the behavioral reasons employees use bad judgment.

Lesson #2 … internet surfing has caused an explosion of misinformation.  For goodness sakes … conspiracy theories debunked before my birth have resurfaced because of reputable appearing sites and posts.  I love my college freshman’s self-aware quip in his high school senior yearbook:  “Never believe anything you read on the internet.  Abraham Lincoln”.  Electronic misinformation has fueled resistance to AIDS treatment in Africa and refusal to get children vaccinated in the U.S.  In my universe, I regularly encounter admirable safety and HR programs copied from online at business sites.  Unfortunately, “form” materials must be site-specific and compliant with local law.  And sometimes those materials actually are 95% compliant, but that last 5% creates a great deal of business for labor lawyers.  At least allow counsel to review the final copy for those legal nuance.  Most of us enjoy preventing problems more than hitting employers with huge avoidable defense fees. We also often find that those policies worked swimmingly for XYZ company who graciously shared them, but they bear little relationship to the shop floor of the company who copied them.  Remember that the reputable providers of good employer forms and policies emphasize the need to spend the time and money to customize them.

Lesson #3 … take advantage of apps.  apps are not a panacea, but used properly, they are a means to make on-the-job practices consistent, documented, and well monitored.  Tablet and phone apps allow supervisors to effectively audit and follow-up on safety issues or facilitate isolated technicians on customer property completing a JSA and conferring with the home office.

 Lesson #4 … don’t neglect training employees and supervisors to write.  You have read endless diatribes on the “text” culture and their near incomprehensible communications.  I’m more concerned about the flippancy and lack of thought displayed by emails.  In the business world, any communication may end up an exhibit, and email is tone death.  Write every sensitive communication as if it may be an exhibit in a lawsuit because it may indeed end up as one.

Lesson # 5 … while I whiled away many an hour as a kid randomly looking up things in the encyclopedia,  my youthful forays were laughable in comparison to the billions of dollars wasted in the workplace by idle surfing.  And such abuses are not the only problem.  Electronic resources and communications magnify the obsessive compulsive in all of us and arguably lengthen the time to complete projects as we seek elusive perfection.  And what about down time?  Many employees would be more rested at night if they had not stayed up to the wee hours on social media, YouTube and the wonderful sites such as cracked.com.

I will probably buy one of the last sets of the Britannica or the World Book.  I’ll tell folks that it is because I am committed to restoring civilization in the event that an EMP or pandemic reduces us to barbarism, but the truth is that I’m just a tad nostalgic.

Howard

Posted in books and articles, employer policies, generational differences, safety programs, safety technology and apps, social media, Uncategorized | Tagged , , | Leave a comment

Feds Let Hawaii OSH Resume Regulating Manufacturing

Posted on September 16, 2013 by mavity2012

(from Honolulu Civil Beat) Hawaii is starting to get its act together when it comes to workplace safety and the feds are taking notice.

The Obama administration is letting the state reassume responsibility for regulating manufacturing industries, according to an announcement Friday.

Here’s the news:

The Occupational Safety and Health Administration and Hawaii Occupational Safety and Health Division have shared regulatory responsibility for Hawaii per an agreement that clearly divides enforcement responsibilities. The Operational Status Agreement (OSA) went into effect last September and was designed to jointly rebuild and strengthen the safety and health regulatory environment in Hawaii. The OSA, a procedural agreement, provides a roadmap for how the OSHA and DLIR’s HIOSH will work together to meet safety and health goals and assure safe and healthful working conditions for Hawaii’s workers. 

“By continuing to work together closely with OSHA, and in partnership with employers, we are on track in rebuilding the HIOSH program. A strong HIOSH not only lowers injury and illness rates, but also improves the overall work environment and accountability,” said Governor Neil Abercrombie. “This Administration is committed to restoring the state’s ability to assure workplace safety and health.” 

The agreement suspended HIOSH’s enforcement authority in specific industries where OSHA assumed responsibility for enforcement until the State is able to be “at least as effective” as OSHA. The partnership allows OSHA to commit the resources and staff necessary to provide the training and support, which will enable HIOSH to reassume sole enforcement authority in the State. HIOSH will progressively resume authority over industries as it rebuilds capacity during the three-year period outlined in the agreement. The return of the Manufacturing sector to HIOSH jurisdiction is the first sector that was scheduled in the OSA to return to HIOSH. (continue reading)

Posted in manufacturing, OSHA, state osha plans | Tagged , | Leave a comment

Do You Really Know How To Manage an OSHA Inspection?

Posted on September 13, 2013 by mavity2012

From my friends at SafetyBLR.com:

August 30, 2013

By Howard Mavity, partner, Fisher & Phillips, LLP

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the compliance officer takes shots and to take notes, but do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued 6 months later?

Plan in advance

Every company site should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know whom to call to obtain guidance. No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation. I have handled nearly 500 fatality and catastrophic cases and have learned that no matter how tough someone may be, people shut down when a coworker or subordinate is killed. At most, site management can cope with evacuating and protecting employees and dealing with first responders. The company needs a system in place so that with one call, the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and press and media management. Set up this system and practice responses. Do not assume that you will never face a fatality or catastrophe. Natural disasters, vehicular accidents, and workplace violence can strike any employer.

Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now common, and even seemingly minor citations can harm the business. In some industries, even a single serious citation can harm bidding opportunities. Most six-figure citations have involved repeat violations of routine items such as missing electric cabinet switch labels, damaged extension cords, partially blocked electric cabinets, or one employee who missed his annual training. Each violation can serve as the basis for a repeat violation of up to $70,000 per item at any company location in any state under federal OSHA jurisdiction for 5 years. No inspection is minor. And furthermore, OSHA’s new information technology system will allow it to better track your corporation’s performance, even when the company operates under many names.

Manage the inspection

The first step is to determine why OSHA is present. Many inspections are triggered by a complaint, and OSHA must tell you the terms. (Continue Reading at SafetyBLR.com)

Posted in government inspections, OSHA | Tagged , , | Leave a comment

The Accidental Supervisor

Posted on September 13, 2013 by mavity2012

My longtime friend, Linwood Smith, V.P. Risk Management of T.A. Loving Company selected this title for a presentation he asked me to make at this week’s Carolinas AGC combined Annual Safety and Human Resources Conference.

 Linwood and I share several passions.  One is to get the HR and safety functions intertwined so that they collaborate in the ever-increasing areas where safety, risk and employment law issues intermingle.  I have been preaching this particular gospel for years, and often present “HR For The Safety Professional” or “Why Safety Matters To HR” clients and business groups.  The CAGC Conference involved joint panel sessions of HR and safety professionals, as well as separate HR and safety tracks where HR folks attended safety sessions and vise versa.  Hats off to CAGC staffers Bill Stricker, Allen Gray and Letiscia Perrin.  We saw some great discussions and the two groups had fun together.

Another shared passion is working to formalize how we select, train, and develop frontline supervisors.  T.A. Loving, a respected North Carolina-based regional heavy contractor has more purposefully addressed this topic than many larger companies.

 Our premise is that even Fortune 100 companies with internal “universities” often do not really know how they selected many frontline supervisors and what factors make some of these supervisors “superstars.”

The workplace reality is that often we promote employees who are skilled at their craft until they reach a point where they spend 85% of their time managing employees.  We may have spent 10 to 20 years developing their technical skills, but once they join “management,” they’re often lucky to attend an annual labor and employment law conference.

 The construction sector is the best example of promoting from the ranks, but is hardly unique.  Titans UPS and Federal Express are justly proud of promoting from the ranks and the “practical” culture this can create.  Likewise, while I was speaking yesterday at the annual Georgia Safety Health and Environmental Conference, one healthcare employer commented that her industry probably promoted skilled professionals into management roles with even less “management development” efforts than occurring in the construction setting.

 Ponder for a moment how many legal problems relating to OSHA, retaliation and discrimination claims result from supervisor error.  How many union drives were avoidable had supervisors practiced basic management and communication skills.  How many mergers were hamstrung by weak frontline management?

 And rest assured, as in responsibility for establishing a “safety culture,” the ultimate responsibility rests with us in upper management.  Lest you think that I am being self-righteous, I have responsibilities for attorneys in 31 offices, and you should not believe that law firms don’t wrestle with the same issues.  Even worse . . . we have to deal with lawyers.  Sigh. . . .

 Like so many problems, we know the solution, we’re just not sure how to get there.  That’s why I developed my “Accidental Supervisor” training to teach a simple practical way to audit what you are doing right and wrong, and then more purposefully and formally develop your frontline supervision.

 As a first step, consider which of your supervisors excel.  What do they do that sets them apart?  Define the meaning of a great supervisor in the context of your business.  Develop a list of skills, competencies and behaviors for different positions, and then determine how the ”great” supervisors developed these traits.  Sure . . . to some extent, individuals may be born with innate skills, but someone somewhere mentioned, taught or set an example that assisted even those “born leaders.”

 The next step is develop a development program, which deserves a separate discussion. 

 HR “Tool Box Talks”

I want to propose one modest step. Construction employers develop weekly or even daily “toolbox talks” on various safety topics.  At brief pre-shift meetings, foreman review these one page plain-English (or Spanish) summaries on fall protection, struck-by hazards, etc.  So let’s develop “supervisor skills” toolbox talks and start using them to explain and repetitively reinforce basic management, HR, legal and safety concepts.

 I pledged to start developing and placing such “talks” on our Howardmavity.com site every week or two.  Hey, it’s a step in the right direction.

 Howard

 

Posted in cultural changes, discipline and discharge, employer benefit plans, management and leadership, performance management, supervisor development | Tagged , , | Leave a comment

All Employers Face October 1st Health Reform Deadline

Posted on September 11, 2013 by mavity2012

 

With the Health Insurance Marketplace created by the Patient Protection and Affordable Care Act (PPACA) set to open its figurative doors for enrollment on October 1, 2013, employers face a new obligation.  Nearly all employers must distribute a notice of coverage options to their employees no later than October 1, 2013; and after that date, to all new hires within 14 days of their start date. The Department of Labor (DOL) has issued two model notices that may be used to meet this obligation.  One notice should be used by employers who offer employer-sponsored health insurance to some or all of their employees, and the other should be used by employers who do not offer coverage.  The model notices can be found on the DOL website under the header “Notice to Employees of Coverage Options.”  

Background

 

Section 1512 of PPACA created a new Fair Labor Standards Act (FLSA) section 18B that requires employers to provide notice to employees of coverage options available through the Health Insurance Marketplace.  On May 8, 2013, the DOL issued temporary guidance regarding the notice requirement.  This guidance will remain in effect until the DOL issues new regulations or other guidance.

Contents of the Notice

Employers may use the appropriate DOL model notice to satisfy the content requirements of the statute, or a modified version, provided the notice includes the following:information regarding the existence of a new Health Insurance Marketplace as well as contact information and a description of the services provided by the Health Insurance Marketplace;

  • notice that the employee may be eligible for a premium tax credit under Section 36B of the Internal Revenue Code if the employee purchases a qualified health plan through the Health Insurance Marketplace; and
  • a statement informing the employee that if the employee purchases a qualified health plan through the Health Insurance Marketplace, the employee may lose the employer contribution (if any) to any health benefit plan offered by the employer and that all or a portion of such contribution may be excludable from income for federal income tax purposes.

Employers Subject to the Requirement 

The obligation to distribute the notice applies to all employers subject to the FLSA.  In general, this includes employers with one or more employees who are engaged in, or produce goods for, interstate commerce. For most employers, a test of not less than $500,000 in annual dollar volume of business applies.

Employees Who Must Receive the Notice

 

The notice must be sent to all employees, regardless of plan enrollment status (if applicable) or of part-time or full-time status. Employers are not required to provide a separate notice to dependents or other individuals who are or may become eligible for coverage under the plan but who are not employees.

Timing and Distribution 

You must provide the notice to all current employees not later than October 1, 2013. The notice is required to be provided automatically, free of charge. 

You must also provide the notice to each new employee at the time of hiring beginning October 1, 2013. For 2014, the DOL will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee’s start date. 

The notice must be provided in writing in a manner calculated to be understood by the average employee. It may be provided by first-class mail. Alternatively, it may be provided electronically if the requirements of the Department of Labor’s electronic disclosure safe harbor  are met. 

Penalties 

The penalty for noncompliance with the notice requirement is unclear.  However, an employer that fails to distribute the notice would violate the FLSA and the PPACA, and may be subject to investigation and penalties. 

Don’t Be Fooled 

Employers should pay close attention to these notice requirements to avoid common pitfalls, including: 

  • My insurance provider is taking care of the notice requirement for me.  Be careful!  Employers are required to send the notice to all employees.  You should work with your provider to make sure all employees, not just plan participants, receive the notice. 
  • I just looked at the DOL model notice, and we don’t have time to fill out individualized information for every employee.  Don’t worry!  The individualized information requested on page 3 of the DOL model notice for employers who offer health coverage is optional.  See the instructions included in the model notice for more details.            
  • I’m sure this requirement doesn’t apply to my small company.  Don’t be so sure!  As detailed above, the requirement applies to nearly all employers, large or small.

 

What You Should Do Now 

These notices should be sent as soon as administratively possible to meet the October 1, 2013 distribution deadline.  After that date, the notice should also be included in new hire materials, and distributed to new employees within fourteen (14) days of their start dates.  Where appropriate, work with your provider and legal counsel to complete and distribute the notice. 

If you have additional questions, please contact a member of Fisher & Phillips LLP Employee Benefits Practice Group.

This Legal Alert provides an overview of new requirements for employments emanating from a new law. It is not intended to be, and should not be construed as, legal advice for any specific factual situation. 

Posted in Patient Protection and Affordable Care Act of 2010, Washington | Tagged | Leave a comment

More On Ellen Widess’ Resignation as Cal-OSHA Head

Posted on September 5, 2013 by mavity2012

Yesterday, we broke the news on our Fisher & Phillips LLP Workplace Safety Blog that  Ellen Widess had abruptly resigned as head of Cal-OSHA.  We reported:

September 4, 2013 08:57
by Howard Mavity

I just learned from Fred Walter at Walter & Prince LLP that Ellen Widess has apparently resigned effective immediately from her position as Chief of the Division of Occupational Safety and Health, and is taking another post. No specific reason was given for her resignation.  No press release appears to yet be out, but if accurate, this resignation could meaningfully affect the current approach taken by Cal-OSHA

Governor brown appointed Ms. Widess on April 4, 2011.  She replaced Len Welsh, a no-nonsense attorney who was known for his genuine efforts to bring the various stakeholders together and to work with all parties.  Ms. Widess focused on groups other than employers, and thus missed many opportunities for genuine collaboration.  An April 4, 2011 EHS today interview predicted such a change:

While Freyman credits current Cal/OSHA Chief Welsh with reaching out and attempting to work with all stakeholders in his role as Cal/OSHA chief, she said he often did so from an employer perspective and labor representatives are “eager to have someone in place who’s more responsive to the labor community and who will prioritize their concerns … .”

During Ms. Widess’ tenure, the Division suffered well-known funding issues, which further reduced its effectiveness, including  by limiting hires and investigators ability to travel.  Fred Walter, who cares about the Division, also observed that during her tenure, the number of experienced inspectors who left Cal/OSHA or sought reassignment significantly reduced the agency’s “corporate memory.”  Many of us have witnessed a similar brain drain as many experienced Area Directors and others have retired from Fed-OSHA.

Ms. Widess was a very visible supporter of  Asst. Secretary of Labor, Dr. David Michael’s, and the changes coming out of D.C.  Ms. Widess shared Fed-OSHA’s current emphasis on the “stick” of enforcement  and disfavored efforts such as California’s Voluntary Protection Program (VPP) construction program.

The effects of Ms. Widess’ departure remain to be seen.  Fed-OSHA has increased its influence over State-OSHA plans in the last few years, so broad changes may be unlikely.  Nevertheless, we are hopeful that the Division addresses a number of outstanding investigation procedural issues and considers how it can coordinate more with stakeholders, including employers, to better leverage its limited resources.

The Cal-OSHA Reporter confirmed the resignation and had quite a few more comments:

 Ellen Widess, chief of the Division of Occupational Safety and Health at the beginning of Gov. Jerry Brown’s administration, has resigned her post mid-term, effective immediately. Widess was widely unpopular with the business and labor communities and not very well respected within the agency according to multiple sources. Most business people in the Cal/OSHA community, which Cal-OSHA Reporter has spoken with, say the positions Widess has taken on AB 2774 as well as on inspections led to her unpopularity.

While no official reason has been given for her abrupt resignation, it did happen on her first day back from vacation. One labor representative told Cal-OSHA Reporter, “We have heard that she was asked to turn in her resignation.” Both employer and labor representatives were practically jubilant at the news. In fact, employer complaints about DOSH to the governor’s office are believed to have been a driving factor in Widess’ resignation, s/he says.  (Continue at Cal-OSHA Reporter).

Fred Walter, at Walter & Prince has speculated on possible changes which would improve operation of the Cal-OSHA plan and better harness employer resources to guarantee a safe workplace:

While the ramifications of Widess’s departure are still sinking in, we view the coming transition to a new Chief as a great opportunity to progress toward the goal of true respect and cooperation between the regulators and the regulated. As DIR Director Christine Baker recently told the AGC: “Our goal is to increase compliance with labor laws and not punish employers who want to abide by the law, so that honest businesses can thrive and profit in California.” We could not have said it better. To that end we offer some places to start:

  1. Return to using the citation notice letter (the Cal/OSHA 1BY) as it was intended to be used: As an invitation to dialog between employers and Cal/OSHA before citations are issued.
  2. Encourage that communication by announcing that the employer’s response to a 1BY letter will not be used against it either as justification for a reclassification of the citation or issuance of an additional citation, or as an admission against interest at hearing.
  3. Correct inspectors and DMs who do not review employer responses to 1BY letters in good faith.
  4. Encourage employers who “get it” by REALLY eliminating “gotcha” citations. There are plenty of companies former Chief John Howard referred to as “employers from Mars” who need citations.
  5. Say it publicly and to staff, say it often, and mean it: Inspectors have no quotas for written citations. Instead of assessing the value of an inspector’s work by its quantity, look to its quality.
  6. Free up Enforcement’s limited assets by having Consultation respond to non-serious complaint letters, with the power to refer employers to Enforcement if necessary.
  7. Allot resources more evenly between Enforcement and Consultation so that both can do their jobs more effectively.
  8. Use those freed-up Enforcement assets to go after the underground economy, which hurts both the State and employers who play by the rules.
  9. Change the rule that employers cannot avail themselves of Consultation’s services to seek advice on abatement while a citation is pending.
  10. Take advantage of our employers’ knowledge to educate inspectors before unleashing them to write uninformed citations.
  11. Reaffirm the stated goal of the VPP program that companies which achieve VPP status will be rewarded by being seen by Cal/OSHA as partners working together towards a safer California.
  12. Encourage the use of experimental variances where new and potentially innovative products and processes become available.

I certainly hope that Fred’s hopes are met.  After all, we’re all in it together when it comes to protecting workers.  Some conflict is inevitable between OSHA, employers and Labor … but some conflict is unnecessary.

Howard

Posted in Cal-OSHA, OSHA, Washington | Tagged , , | Leave a comment

EEOC Loses (Again) On Criminal-Background Checks

Posted on September 5, 2013 by mavity2012

 

EEOC Loses (Again) On Criminal-Background Checks

Date: September 1, 2013

By Edward Harold

(Retail Industry Update, No. 3, September 2013)

Last year, we wrote about the EEOC’s then-new guidance on the use of criminal-background checks in hiring decisions. [“Using Conviction Records As A Screening Tool,” Retail Industry Update, June 2012].  In December 2012, the Commission issued a strategic enforcement plan that included targeting background checks as a barrier to employment of minorities. In June of this year, the Commission trumpeted the filing of lawsuits against Dollar General and BMW North America claiming their use of criminal convictions in hiring violates Title VII.

But these latest lawsuits were not the EEOC’s first attempt to challenge an employer’s alleged blanket use of criminal-background checks in hiring. In 2009, prior to the publication of the latest guidance, it sued Freeman Companies in federal court in South Carolina alleging that the manner in which Freeman used background checks had a disparate impact on minorities. Recently, the district court sent the EEOC packing with its tail between its legs.

The Theory

Title VII prohibits both intentional discrimination and disparate-impact discrimination. The EEOC’s criminal-background check guidance and lawsuits over the use of them all fall under the disparate-impact theory. In this model, an employer does not have to intentionally discriminate to have liability for violating Title VII. Rather, the employer must only use a neutral policy or practice that screens out a disproportionate number of a particular protected class. And even if a neutral practice does have such a disparate impact, a business will not violate Title VII if it can prove that the neutral practice is job related and consistent with business necessity.

The EEOC holds out that the use of criminal-background checks in the hiring process can have a disparate impact on African Americans. The basis for this conclusion appears to be extrapolated from generic figures related to the conviction rates of African Americans and other minorities versus whites. Additionally, the EEOC has for years contended that blanket exclusions based on criminal convictions are not a business necessity relying on the 1975 decision in Green v. MoPac RR.  In that case the U.S. Court of Appeals for the 8th Circuit noted, “[w]e cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.” 

Disparate-treatment cases rely on statistical evidence. In Green, the proof of the disparate impact came from a very rudimentary statistical analysis of the difference in rejection rates of white applicants and black applicants. Since using the rule excluded black applicants two and a half times for every one time a white applicant was rejected, the court concluded disparate impact had been proven.  (Continue at F & P website).

Posted in background checks/examinations, class actions/systemic investigation, EEOC, employer policies, hospitality, retail | Tagged | Leave a comment

The One OSHA Post Retailers Must Read.

Posted on September 4, 2013 by mavity2012

If you are in any aspect of retail and a member of LinkedIn, you really need to read the comments on this post on one of the OSHA and Safety sites, “Have You Checked Your Means of Egress lately? Dollar Tree Didn’t…”.  

I’m not sure which will scare you more, the six and seven-figure OSHA Repeat citation exposure from common challenges such as partially blocked doors, extinguishers, and electric panels or the large number of OSHA citations against chain stores (including drug stores) or the vituperative comments posted about the cited retailers. 

Many bloggers even provided links to other companies’ OSHA citations.  The post turned into a discussion of many high-profile retailers.

DO YOU NEED THIS BAD PRESS AT A TIME WHEN SUCH INFORMATION IS BEING USED AGAINST RETAILERS, RESTAURANTS AND HOTELS?

These bloggers actually are doing you a service by reminding retailers of their special safety and OSHA challenges.  I’ve blogged on these topics before and encourage you to review those past blogs and articles I have written on retail and distribution OSHA exposure.  While the tone of the posts was harsh, the issues raised are legitimate, and these bloggers knew what OSHA checks.  I would not discount their observations, even if the facts may be different from what OSHA citations suggest.

The posts go on for pages, but here are a few snippets (I’ve tried to block references to company and blogger names) ….

I wanted to write about this because I frequently visit the “OSHA IMIS Database” and look at problem companies that I’d visited to see if they learned their lesson. BLOCKED, a company that most of our inspectors from the Reno, NV office had visited within about 7-10 months, was a FREQUENT violator of these rules.

In one visit I found the following violated standards:

1910.36(d)(1) Employees must be able to open an exit route door from the inside at all times without keys, tools, or special knowledge. A device such as a panic bar that locks only from the outside is permitted on exit discharge doors.

How was it violated? The employer due to direction by the regional loss prevention manager had placed padlocks on each emergency exit door. Not that it mattered, but nobody had a key at the particular store, so even IF the manager had a key and was there, what happens to everybody else if he runs out the front door, or gets shot or incapacitated in some way, and the front door is blocked by an obstacle or hostile person? Not that it is OSHA’s jurisdiction, but what about the liability against the store/corporation if a customer falls victim to one of these violations?

1910.36(g)(2) An exit access must be at least 28 inches (71.1 cm) wide at all points. Where there is only one exit access leading to an exit or exit discharge, the width of the exit and exit discharge must be at least equal to the width of the exit access.

How was it violated? The employer frequently blocked emergency exit doors and routes with mobile conveyor tracks, and overstocked merchandise, and would leave a small 1′ ft gap between boxes and the exit, it wasn’t even identifiable while I was inspecting. If trapped by a life threatening hazard anybody who ran to the back for quick egress would have been stopped from exiting by a combination of the padlock, and items blocking the exit.

How was it violated? 1910.37(a)(3) Exit routes must be free and unobstructed. No materials or equipment may be placed, either permanently or temporarily, within the exit route. The exit access must not go through a room that can be locked, such as a bathroom, to reach an exit or exit discharge, nor may it lead into a dead-end corridor. Stairs or a ramp must be provided where the exit route is not substantially level.

How was it violated? This standard ad the one above are similar, but I cited if for the temporary obstruction of the routes and doors by other material, and forklifts/pallet jacks.

1910.37(a)(4) Safeguards designed to protect employees during an emergency (e.g., sprinkler systems, alarm systems, fire doors, exit lighting) must be in proper working order at all times.

How was it violated? Employees often snuck in the back during the snowy season to smoke, several fire sprinklers for whatever reason, along with a smoke detector were all covered with plastic bags, which rendered the sprinklers useless.

So these things as you can tell, are pretty easily fixed, and avoided; however, are very easy to cite, and can easily contribute to a death where they could have saved a life. When dealing with BLOCKED management, they had a very strange attitude. Rather than attend an informal conference, getting a reduction in penalty, or asking for reclassification of the citation to “Other-Than-Serious” and paying the fine, they just sent a check in the mail…we called and offered them the above option, they refused. The penalty for that visit was $36,000. They had several visits as I stated earlier, where they received repeat citations. They had the same regional, and area managers, and assumed that they could just pay the fines, and we’d go away. It seems that coming up with an enforceable work rule/practice would be a much better idea.

….

I checked IMIS today, and saw that they have been recently visited again by one of my former co-inspectors. This visit resulted in 3 willful citations and a repeat other-than-serious. This visit cost them $210,000 and destroyed their OSHA history. It only included one instance of the Means of Egress violation, the others were for blocked electrical panels, and unsafe overhead storage…things I’d cited them for in the past. In case you didn’t realize, there is a repeat citation rule that makes it so that, the penalty amounts are 2 x’s 3 x’s 4 x’s the original citation amount, and then each substantially similar situation resulting in a citation after that is automatically a willful citation for 5 years.

….

…the point is that BLOCKED is not alone in not being aware- this is a common shortcoming amongst those in retail. Over the course of the last couple of years you will find that a large percentage of the “big box” retailers have received he exac same ciations (as well as a host of other citations such as a lack of covers on electrical boxes, no MSDS sheets, improperly maintained electrical cords, lack of appropriate Haz Com, trash compactor issues, etc.).

….

BLOCKED (2nd Company) was recently hit for a bunch of safety issues at one of their stores. Here’s the news release: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24624. Likewise, BLOCKED -3rd Company)was involved in a national settlement in August, the news release is here: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24495. Here is the news release for a “home goods store” BLOCKED – 4th Company): https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24360. And these were only from August and July.

….

One thing that the BLOCKED franchise fails to do, and many like them, is to provide better communication between each respective store manager and the corporate office/district manager. I have discussed this at great length with them before, and others just like them. Unfortunately, those who are not directly on site make merchandise delivery decisions based on expectations and assumptions of sales and inventory rather than what is realistic and the inventories that are actually on hand. A better system of inventory control is necessary and this has been conveyed to them many times, This is one of those instances where education and awareness is no longer effective, but unfortunately circumstances such as overstocking occurs very regularly, especially during the holidays. and oversight can best be achieved through legal action, including fines and penalties.

The BLOCKED and other big boxes have well established safety programs and managers to ensure that compliance is achieved and that there is a level of safety as well as awareness at each facility. As a result, they should have no excuses, nor should they have reoccurring violations.

Posted in boycotts, hospitality, retail, safety programs, unions | Tagged , , | Leave a comment

Disturbing Poll On Sex Harrassment

Posted on September 4, 2013 by mavity2012

The vast majority of sex harassment cases we see litigated do not have legal merit and that tends to make management labor attorneys wary of harassment claims … at least those that are litigated.  It almost seems as if the individuals with invalid claims are the ones that sue, and those that have legitimate claims may keep silent.  Like most employers, it concerns me that employees still experience harassment and that they may not report it.  A recent poll suggests that many employees are in fact not reporting concerns.

A recent Huffington Post article discusses the results of their poll…

Thirteen percent of respondents to recent HuffPost/YouGov poll reported having been sexually harassed by a boss or another superior, and 19 percent have been harassed by a co-worker other than a boss or superior.

Of those who said they’d experienced sexual harassment, a full 70 percent said they never reported it.

I am concerned  that so many respondents said that they did not report the incident, if indeed they thought that the experience might arise to harassment.  That’s a bad report after years of No Harassment programs. 

The article noted further:

The HuffPost poll found that one in five women said they’d been harassed by a boss, and one in four said they had been harassed by another coworker. And although women were more likely than men to say that they had been victims of one or both types of sexual harassment, men also reported being sexually harassed — 6 percent said they were harassed by a boss and 14 percent by a coworker.

In addition, 21 percent of respondents to the poll said that they had witnessed someone else being sexually harassed at work. Among those who had, only 33 percent said that they had reported it.

The moral of the story is that as long as we deal with humans, we still have work to prevent and to swiftly and effectively respond to harassment, and not just based on sex.

Posted in attitude/culture, discrimination, EEOC, harassment, Uncategorized, whistleblower/retaliation | Tagged | Leave a comment

“SINGLE SERVING HR”

Posted on September 4, 2013 by mavity2012

While reading Howard Risher’s insightful article, Why We Need To Hold Managers Responsible For Employee Performance, I realized that many of us treat HR like the “single serving friends,” Tyler Durden calls people he meets on planes and uses only one time…

Everywhere I travel, tiny life. Single-serving sugar, single-serving cream, single pat of butter. The microwave Cordon Bleu hobby kit. Shampoo-conditioner combos, sample-packaged mouthwash, tiny bars of soap. The people I meet on each flight? They’re single-serving friends. (from Fight Club).

All too often, management seeks HR’s help after things go bad or the decision is made. HR may be in charge of performance management, but do we involve them throughout the year, or just when we have to complete that annual paperwork? Mr. Risher, who seems imbued with old-fashioned common sense sums up the situation in many businesses:

I think it’s time for HR to take off the hair shirt. We have no reason for penance. For decades HR has been admonished for the problems with performance management (PM) when in reality HR has virtually no direct involvement in the day-to-day management of performance. It’s a system or tool that is used by managers and supervisors. The problems are largely the ineffectiveness of managers in their role as supervisors. HR’s role in performance management is limited; it keeps the personnel records, provides training, keeps track of scheduled reviews, and when problems arise, looks at the pattern of ratings and the documentation. It’s similar to the role of budget director – but a difference is that when PM problems surface it’s the system and HR, far more than the managers, that are somehow responsible. CONTINUE READING AT TLNT.

Risher later points out the core problems:

We know what the core problems are – inadequate feedback and inflated ratings. My experience tells me it’s a vicious cycle; manager’s know there is a problem, are uncomfortable with what’s expected of them, and opt to spend their time on tasks/roles they find more satisfying. The pattern starts. But, this is part of a broader problem. Too many managers and supervisors were promoted to supervisory roles because of their technical skills or seniority. Their training is inadequate and they have not developed the people skills to be effective as supervisors. It’s exacerbated when managers at higher levels – presumably the role models – fail to demonstrate effective supervisory behaviors. Furthermore, reward systems rarely reinforce the behaviors known to be important.

As in safety programs, the key factor to improve performance management is for leadership to get serious about the importance of this process, and not devalue performance management to a “once a year annoyance.”..

The solution starts with leaders who make human capital management a priority. Research has confirmed focusing on human capital management is a competitive advantage. The stories of the ‘best places to work’ also highlight its importance. Training is of course important but the behaviors have to be reinforced, and that makes the reward system a core consideration. The best managers need to be recognized and rewarded. The least effective need to be moved to non-supervisory roles. That sends a powerful message.

Risher has posted many fine discussions on performance management at TLNT, which contain practical observations and suggestions. (Howard Risher)

So quit treating the HR folks like “single serving friends,” and elevate the role of performance management to a year round aspect of your management.

Thanks to Howard Risher for this timely reminder.

Howard (Mavity)

Posted in cultural changes, discipline and discharge, employer policies, management and leadership, performance management | Tagged , , , | Leave a comment