Common Mistakes In OSHA Inspections

Posted on June 13, 2013 by mavity2012

 This post is not a comprehensive  “guide” to handling OSHA Inspections, but rather is a few observations about reoccurring issues we see in OSHA inspections.  These comments are most appropriate to a fatality or more involved OSHA inspection.

1.         No matter what you’ve experienced in the past, do not treat OSHA inspections as “no big deal.”  You will be in danger of “Repeat” violations of up to $70,000 an item for five years at all of your locations.

2.         HR, General Counsel and Corporate Safety Directors hate “surprises,” such as learning of a OSHA inspection days or weeks later when there is little that they can do.  If you are a site manager, always notify HR, Legal or Upper Management when OSHA arrives . . . not when you receive a citation.

3.         Set out in writing at every location who to notify when OSHA or any investigator comes on a company site . . . and regularly remind frontline managers.

4.         Involve counsel when OSHA first comes on site; even if only to obtain basic guidance.

5.         “Manage” the OSHA inspection.  Most Compliance Officers are decent professionals who are committed to safety.  Nevertheless, we encounter employers who felt bullied, and meekly followed even unreasonable orders.  Cooperate and be professional, but pause . . . think about each “request” . . . determine “when” you need to respond . . . and do not lose control.  Everyone’s interests are best served by responding in an orderly and thoughtful fashion.

6.         Dig – dig – dig.  There always seems to be more facts, especially in death or catastrophic cases.  Don’t rely on others to ask your questions . . . even if you write them out.  Follow leads and tangents.  Investigate and disregard or confirm “speculation.”  People remember facts later; you may have to revisit witnesses.

7.         Especially on a multi-employer site, the first dealings with OSHA are critical and may set the tone.  You probably don’t know many facts at this stage, so don’t speculate.  Don’t feel compelled to volunteer every positive safety effort ever carried out . . . you may unintentionally raise additional issues or expand the scope of the inspection.  Do build a rapport, obtain a list of materials requested, and be responsive.

8.         On a multi-employer site, expect at least one employer on site to grab the OSHA Compliance Officer as soon as he or she comes on site, and start “selling them a story.”  It does not pay to actively throw another employer “under the bus,” because OSHA can cite everyone.  Nevertheless, it is common and can skew the inspection.  See my recent post, “It’s Not Our Fault!  It’s Their Fault!”

Posted in Uncategorized | Leave a comment

The 50 People Who Most Influenced EHS in 2012-13

Posted on June 11, 2013 by mavity2012

My thanks to EHS Today Magazine for selecting Ed and me to EHS Magazine’s 50 People Who Most Influenced EHS in 2012 – 2013.  We really appreciate the acknowledgement and hope that we can do even better in 2013 – 2014.

The 50 People Who Most Influenced EHS in 2012-13

Here’s a quick look at those individuals whom the editors of EHS Today feel had the most impact on occupational safety, health, the environment and risk management in 2012-13.
Jun. 4, 2013 Sandy Smith | EHS Today
 
Posted in OSHA | Tagged | Leave a comment

Ruminations On What makes Businesses Succeed (as if a lawyer knows!)

Posted on June 11, 2013 by mavity2012

This post is personal, and as the introduction to DVD’s state … this post does not reflect the views of F & P, etc.  It’s a labor of love, and also a reflection of my conviction that safety is inextricably intertwined with broader HR issues.

I typed this while flying across the Atlantic to South Africa and Zimbabwe two weeks ago.  That’s not a relevant fact to this post … I just wanted to type the phrase “flying to South Africa … instead of a more typical start, such as, “I’m cooling my heels in the $%#! Newark Airport.”  Pretty prosaic stuff.
I am fortunate to have quite literally grown up in the family businesses.  When my dad left Corporate America to start his first business – trucking – he had little money so he wisely leveraged his human capital … he “hired” my whip-smart mom, whose no-nonsense mathematical mind so complemented his Irish exuberance and entrepreneurial talents.  So I stayed at the terminal most nights until 8 or 9 when mom finally tiredly drove home.  Don’t feel sorry for me.  I actually saw more of my parents than most kids, and I observed them in the real world. 

When I grew older, I rode my bicycle to the newly opened McDonald’s and persuaded them to hire me “underage,” which foreshadowed my eventual “flexible” approach to rules and bureaucracy.  I thought that was what every kid did … get a job.  After two summers in fast food, I explained to dad that “the worst job you have is better than chopping lettuce.” (Due to my incompetence, I never advanced to “grill,” the embodiment of teen studliness.)

At 14, I started work in our wire rope rigging shop working with 1000 ton (unguarded) presses, cutting torches and lots of other stuff way cooler than washing dishes.  The OSHAct was brand new, so we didn’t worry about things like PPE, respiratory protection when pouring lead sockets, or prohibiting employees from packing 44  magnum at work.  Say what you will about OSHA … it was needed!

Bear with me … there is a reason for this wool gathering.

Unlike some lawyers, I was blessed to learn how the real work world functions … and I grew up around decent working people who can never simply be “FTE’s” to me.  Not what you expected from a management labor lawyer?

A few observations …

“Small business” ways can apply to big business.  Regardless of changes in technology, regulation and the products and services provided, certain concepts remain immutable.  In “small business,” every employee knows that resources are not unlimited and that money wasted comes” out of the family’s pocket.”  This attitude is even greater among management.  You weigh expenditure and you are responsible about how you perform your job.  The most successful man who I count among my friends built a $9 billion a year business from nothing by running the business with “common sense” responsibility.  There are problems because a small business model tends to go off the rails when you start measuring profits in the billions, so you have to “evolve.”  Nevertheless, “big business” can learn a lot from “small business.”

Never get too big for your britches, or as dad explained, “Pigs get fat and hogs get slaughtered.”  By the time I entered law school, our family was living a nice lifestyle, but I grew up in an environment where my parents delayed self-gratification.  I remember mom and dad once having to choose between paying the home or terminal electric bill, and they chose the terminal bill.  Good thing it was Spring.  Although my brother and I never suffered, I recall mom and dad returning their Christmas presents for each other to make payroll one year.  However, I also recall my shock in law school when mom and dad bought a 57 foot Chris Craft boat and I realized that wow … they’ve done pretty well!

Most of one’s employees are good decent people, and as a manager, you have a responsibility to them.  Let me make this more practical.  Everyone pays lip service to respecting blue-collar folks, but like politicians and academics, they may not actually want to brush shoulders with them.  Fair enough; maybe a PhD does not have a lot in common with a truck driver.  However, one must still appreciate ones employees as real life decent people … even when you want to strangle them.  My dad died when I was 26, and my mom, his true business partner, continued running the companies.  Mom had no desire to go home, so she always worked late.  She noticed that at least two employees always hung out at the warehouse, carried her huge briefcase, and walked her to the car.  When she confronted them, they confessed that the drivers had drawn up a schedule so that “Miss Betty” would never work late alone.  How can I ever feel superior to employees after growing up with such people? 

A smaller business may not be able to compete on wages and benefits, but it can compete based on work atmosphere … which also makes “third parties,” such as plaintiff lawyers and unions seem unnecessary to employees.  every workplace has problems, which can be capitalized on by a disgruntled employee with a little bit of leadership.  But in the correct environment, employees will come to you … cheaper than using lawyers!

As a side note, my dad was a fierce employer and expected performance.  He even fired me twice, which is pretty bad.  Lots of sons get fired by their dads, but … twice?  And my mom was even tougher.  Despite dad having fought in two wars and been a POW, there was never a day that I didn’t fear mom more than dad!

My point is that if you really want to be union-free or avoid charges and lawsuits, you have to approach your workers with what can only be described as down home common sense and a sense of tough fairness.  But don’t be reluctant to demand performance or to discipline and discharge employees.  Far more labor law issues arise from not terminating employees than from terminating too many employees. 

As an add-on, I wanted to learn more about  South Africa’s efforts to raise its black and “colored”  majority to an equal quality of life with the whites.  I spent time  in several “Townships” with a black entrepreneur and later with a teacher who survived apartheid.  They showed me thriving neighborhoods of people trying to get ahead.  People were friendly; kids were clean-cut and in uniforms from school; and bitterness and a constant attitude of blaming apartheid were not present.  They’re making progress.  Sure … there are some hell hole shanty towns, but even those sites are not what you may think.  I doubt that I could behave so honorably with so much painful history.
Once again … my point?  If people in this environment can step up and seek to improve themselves, we have no justification in the U.S. to say that we cannot work with our employees, get them engaged, and still make a solid return.  Which by the way, makes my profession less needed!

Thanks for indulging me.  I’ll discuss more lessons learned  from mom and dad in future posts and add observations gleaned from my 29 years of practice about how employers get in trouble.   I think we can all agree that such ideas are not “rocket science,” or else I would be excluded from any discussions!

Howard … Bill and Betty’s son

Posted in attitude/culture, discipline and discharge, employee engagement, generational differences, managing legal matters, safety programs | Tagged , , , | Leave a comment

Why Is Common Sense So Uncommon?

Posted on June 11, 2013 by mavity2012

Don’t get me wrong. I make a handsome living in part because common sense is anything but common. However, I like to prevent labor and employment problems, and I’d do anything to reduce the number of workplace deaths.  So I chew on this question a great deal … like June 3 as I flew 16 hours to Africa,  fueled by a surprisingly good Bordeaux.

I’ll leave the thoughtful psychological, sociological and anthropological analysis to more thoughtful people than me. I’ll settle for just throwing out some examples of where common sense may be as elusive as the African Honey Badger, and how to address that absence.

1.  Stop … consider what safety hazards are presented by the next task … and act accordingly. If every worker consistently took this approach, we would have far fewer injuries and deaths, and I would have to get an honest job.

2.  Safety must continuously be reinforced or we will become complacent and cut corners. I have repeatedly seen employees nonchalantly take unreasonable risks less than six months after they were emotionally torn apart by the death of a co-worker. Provide the detail on confined space entry and site-specific fall protection, but also build this simple “pause and think” mindset into employees.

3.  Perhaps we could obtain more commitment to doing the required Job Safety Analysis if employees understood that JSA’s or site hazard assessments are simply a way to give them the necessary information to make wise decisions.

Moreover, even if one is a construction employer working under the broad requirements of 1926.20 and 21, or if Fed-OSHA’s “I2P2”becomes law, it is impossible to develop a written procedure for every work eventuality. Workers must be taught to always pause and conduct their own quick JHA.

4.  This informal ongoing job hazard analysis is especially vital for the remote worker or employees delivering ready mix concrete or working on an isolated HVAC system where no supervisor or safety professional is present to review the site for hazards and instruct them in avoidance. Perhaps require them to conduct a hazard analysis on their tablet before proceeding. Sure, employees can still pencil-whip such an electronic form, but at least it may make them pause and think. On a pragmatic level, an employer cannot escape their duty to ensure their employee is safe even where the employee is working alone on another employer’s site, and such a procedure may be documentation of the employer’s reasonable diligence.

5.  Know where to stop … even better, don’t start. Employees are going to engage in teasing and coarse humor at work, especially in construction or other hot tough work settings. Guys, let’s be honest. If we don’t tease a male co-worker, we probably don’t like them or know them well. Sadly, it’s how we relate to one another. I’m more worried by the teasing than by the cursing and off-color jokes. When you read about a heterosexual construction worker suing for same-sex harassment because co-workers endlessly teased him about being a “faggot,” etc., you can assume that this was a gradual process. The teasing was probably never welcome or funny, but it escalated to the point that when the behavior is described to a jury, no defense of “you had to be there” or “boys will be boys” will save the employer. I don’t believe that even those outrageous recent cases where coworkers called an employee a N***** began with such outrageous behavior. Nope. The morons worked their way up to that level of bad behavior.

The moral of the story? Train supervisors to stay on top of horseplay and teasing. Employees don’t need to whine about “PC” restrictions. Teach them to exercise uncommon sense and not allow teasing to escalate.

6.    E-mails and electronic communications. We could blog for hours on this topic, so let’s  keep it simple. Teach employees that e-mail is NOT voice mail or a telephone conversation. E-mail lives forever and is subject to endless misunderstanding. Moreover, e-mail is tone-deaf. How often have you received a terse e-mail from someone and decided that they are a jerk … and later learned that they were a nice person who was oblivious to how their e-mails sounded?

So tell employees and supervisors that (1) some communications must be oral, and (2) pause and think about how that e-mail might be (mis) interpreted. Frankly, we should type e-mails as if they might later be exhibits in a lawsuit … because they might be. As a personal discipline, I use my work e-mail for personal communications because it reminds me to never type something that I would be uncomfortable if the firm chairman were monitoring my e-mails (which knowing my buddy, Roger, he well might be!). Also, tell employees to adhere to that old admonition to let an angry e-mail sit overnight before sending it.

Howard

Posted in employer policies, harassment, hazard assessment, management and leadership, reducing injuries | Tagged , , , | Leave a comment

OSHA Gets It Right On Temporary Workers – Part II

Posted on June 11, 2013 by mavity2012

I have been surprised to see so little commentary on the outgoing Deputy Assistant Secretary’s April 29 announcement of OSHA ramping up its focus on Temporary Workers.  Ed talked a bit earlier this week about OSHA’s new initiative and I’ll provide additional practical observations.

There are few areas where employers are innocently more ignorant of safety failings than for their “temporary employees.”  Such employees often fall through both the employer and temporary provider’s oversight.

Management side OSHA lawyers can regale you with countless stories about employers who were surprised to learn that their “temporary” and not-so-temporary employees had not received site-specific Haz Com instruction or received fit testing and the required medical evaluation before utilizing respirators.  There is no malice in such violations.  Somehow the safety department’s concerns just fell through the cracks.
The memo states:
“Recent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lock out protections among others.”

 The memo tacitly acknowledges that these days, “temporary employees” may not be so temporary and may be working regularly at a site, on a long-term open basis, or in a temp to perm basis.  The reality is that, often, employers employ “temps” for months at a time, and this creates significant safety responsibilities.

 Ed and my experience is that “temporary” workers result in a disproportionate number of OSHA violations because employers are not aware of the extent of the employer’s responsibilities.  OSHA’s directive focuses on recent highly publicized deaths of temporary employees, who supposedly were under trained or not properly integrated into the employer’s safety processes.  However, we find that experienced employees who become nonchalant about safety constitute the largest percentage of fatalities.  So, while not to denigrate the importance of preventing fatalities, our focus on temps is more one of compliance in even the more routine safety areas.
How Does OSHA’s “Initiative” Work and Where Am I Exposed?

  OSHA broadly defines “temporary workers.” 

 OSHA recognizes that it is increasingly common for employers to utilize agencies to provide workers for a 6-month “temp to perm” period where the employer can more freely evaluate the candidate and its own manpower needs.  OSHA also realizes that, especially since 2008, “temps” may work on site regularly or continuously for months or even years.  At this point, it is admittedly difficult to distinguish the employer’s obligations between its full-time and “temporary” workers. 

The economy, increased regulation and statutory demands, and the evolution of manufacturing and other settings drives this continuing move to use of “temporary workers,” and we find that indeed employers have often not even considered the unique compliance challenges posed by these workers.  Basically the thought processes are “huh, they’re temps … they don’t require as much safety and other training,” or “I never thought about it,” or “that’s the provider’s responsibility … isn’t it?” OSHA has determined that temporary workers innocently fall through the system, although it is unlikely that OSHA will attribute these failures to “innocence” … it’s possible that they will view the employer’s actions as the “plain indifference” associated with “willful” conduct.

Background

Let’s be honest, part of this focus is driven by unions who want more dues paying members and may genuinely believe that employing temporary workers is unfair to the workers.  This belief among unions seems near universal among unions.  While in South Africa, I witnessed employers and economist’s concerns when the trade-union heavy ANC proposed to all but eliminate “labor brokers,” potentially resulting in the loss of 1 million workers and the additional battering of the Rand.  Don’t get me wrong, I recognize the opportunity for abuses of the temporary process, but the reality is that those abuses are never the sole focus of such initiatives.  Expect unions and third parties to employ safety concerns about temporary workers in attacks on unionized and non-union companies.  Expect as well to hear claims of unfairness and of a discriminatory impact.
The Initiative reflects the increasing ability of OSHA to better target employers and to track multi-location employers many sites.  As I have posted before, employers who have had limited experiences with OSHA, even after meaningful citations at one location, should not expect this lack of focus to indefinitely continue.  Even with their budget constraints, OSHA is slowly making its SVEP more invasive and effective.  And as I explained last December, OSHA has rolled out a more effective internal information system for tracking employers and making more inspection information available online to OSHA Area Offices.
In implementing this Initiative, Compliance Officers are instructed to:

•         Determine within the scope of their inspections whether any employees are  temporary workers and whether any of them are exposed to violative conditions;
•         Document the name of the staffing agency, its location, the supervisory structure, including the extent to which the temporary workers are being directed on a day-by-day  basis by either the employer or agency;
•         Review records and conduct interviews to determine whether the employees have received required training in a language which they can understand; and
•         Use a newly created “Code” in OSHA’s internal information system  to document AND TRACK where a temp agency’s employees are exposed to a violation ( AND on the employer’s record, so that a Compliance Officer going on site at another location will be aware of potential repeat opportunities).

Actions Going Forward

Use this initiative to spur you to:

1.       Expressly check to see how and in what ways you use temporary workers, and whether you ever documented and taken steps to determine that in each setting, these workers receive required “site-specific” training and safety instruction;

2.       Review your agreements and actual practice with providers.  If you supervise the workers, they are probably recordable on your 300, and the safety obligation ultimately falls on you.  One cannot contract away responsibility.  If the agency fails to do contractually required training or does not do site-specific training, you will probably be cited as well. Often, the safety manager never sees or knows detail about these contracts.

3.       Even if you require a provider to conduct basic safety training, such as Hazard Communication, PPE use, and Bloodborne Pathogens, it may not be adequate or may still necessitate site-specific training.

4.       Ensure that your supervisors know their role and responsibility toward temps, subs and contractor employees.

5.       Review how you document training of temps, including documentation of “on-the-job-training,” and

6.       Also consider temporary workers inclusion in Respiratory, Hearing protection, PPE and other programs, and the obligations created.  Consider how you must treat the sporadic temporary employee, the long-term temps and the temp-to-perm.  All three categories pose difficult challenges in complying with certain programs.
Howard

 
Posted in employer policies, government inspections, hospitality, manufacturing, OSHA, safety programs, workers comp | Tagged , , | 2 Comments

Employers Hesitate To Discipline Workers For Safety

Posted on June 11, 2013 by mavity2012

This from BLR Workplace Safety News …

June 11, 2013
Employers hesitate to discipline workers for safety
A labor lawyer says discipline is essential for safety, but employers just aren’t doing it. Fisher & Phillips partner Howard Mavity cites a firm study that found 56 percent of large general contractors were unsatisfied with how often supervisors disciplined employees for unsafe actions.  (READ FULL ARTICLE).

Posted in discipline and discharge, employer policies, incentive plans, OSHA, safety programs | Tagged | 1 Comment

Why Do Some Establishments Deliver Such Fine Customer Service – And What Does This Have To Do With Safety?

Posted on June 11, 2013 by mavity2012

I’m on my 16 hour flight back from South Africa to Atlanta and processing my experiences.  Surely such a varied and unusual adventure will provide me with fodder for some philosophical musings which lead to my usual practical “Action Points” on safety and employment law.

I have  marveled this year at the fine customer service I have received while traveling throughout the U.S., France and now, South Africa, Zimbabwe and Zambia.  My question is not an idle musing.  I never encounter superior customer service in an environment where employees are dissatisfied, claims are frequent, and safety compliance is poor.  How do we achieve this exalted state … and also avoid legal challenges?

Despite being a liberal arts kind of guy, I live and die by objective analysis, so let’s see if we can narrow down our variables.

1.       In my African travels, I have not traveled cheaply; I flew business class, stayed at nice hotels, enjoyed Sabi Sabi, one of the best safari lodges on the continent, and used South Africa’s best guides.  You receive fabulous service when you go first class.  Plus, one receives amazing care when one uses an individual driver/guide or is one of only 16 guests at a lodge.

 

2.       However, I am not a high flier in my business travel or even in most of my recreational travel … so why have I also received superior customer service from countless Hampton Inns and National Rental Car sites?  What is the common factor?  Also, what does giant Delta do right as compared to United, American, Air France and others?

 

3.       I am purposely nice to those individuals who provide services to me.  I tip well.  I ask their names and I show them respect.  Certainly that behavior influences their response.  So how does one explain the same employee’s respectful  response to customers who can only be termed as “difficult?”

 

4.       Customer Service knows no cultural, class or geopolitical boundaries.  I received good service from both a bar tender in a Zambian bar and from a highly certified guide at the apex of Africa’s rigorous safari guide system.  Ladies selling handmade souvenirs in Soweto could not have been more pleasant.  Sure … they all want to make money, and I am a decent guy, but is that all there is to explain their attitudes and the resulting effects on the business?

 

You guys tell me?  My questions are not unique.  Countless scholars and consultants offer answers and suggestions.  The hospitality industry lives and dies on this issue.  What are common elements of an atmosphere that promotes and generates superior customer service … which usually also translates to an atmosphere of good compliance and less employment-related claims?

These questions are not rhetorical.  I hope some of my readers will comment.

I look for basic common sense principles, and here are a few of my admittedly unsophisticated observations …

1.       “We’re all in this together” …. Employers prosper when they create or encourage an atmosphere that emphasizes that all of us employees are dealing with similar challenges, value one another despite our roles, and sink or swim based on our concerted effort.  At Sabi Sabi, one of the continent’s best safari lodges, every member of their elite Earth Lodge seemed to value one another despite race or relative position.  In such an environment, distinctions are encouraged, and roles clear, but one received the impression that everyone respected one another.  That’s no small feat these days.  This argues for more effective examples by upper management and more consistent supervisor training and employee engagement efforts.

 

2.       HR and motivational theories are useful, but never forget to simply treat people decently and with respect.  Nuff said.  You don’t need a consultant on this one.

 

3.       Be purposeful.  We all know what to do and often have good intentions, but the increasingly tough demands of the 21st century work environment steal our focus and time.  If one does not develop a plan and a way to monitor success or remind oneself, good intentions never grow into consistent actions.  Frankly, this is my primary point … if we, as managers, do not come up with a plan and a way to keep reminding us of how to act; those good intentions will amount to naught.

 

4.       Treating people decently does not mean letting employees get away with unacceptable performance or conduct.  I don’t like busting people, but I know that I am creating a festering problem when I fail to address performance or attitude issues because that’s not a pleasant job or “I am too busy.”  Do I even need to mention the affirmative defense of an employee’s OSHA violation of “unpreventable employee misconduct” as one reason to discipline employees?  We discipline too little, not too much.

 

5.       Get on the floor … regularly.  Again, you don’t need a consultant to implement that suggestion.

 

6.       Train your supervisors “regularly “ and repeatedly in how to counsel, mentor, develop and generally supervise employees.  I have harped on this point for many years, and yet, I still find little commitment or practical efforts to develop front line management in their employee management skills.  I have repeatedly written about how retaliation, ADA and other claims result from supervisor ignorance … not malicious intent.

 

7.       Don’t assume that corporate policies and values will be practiced at every site or remote location.  Develop ways to monitor and check up on the real world of your work sites.  This process is even more vital when we consider one or two person crews working with immediate supervision.

 

8.       Care about your employees.  My dad was a tough boss, but when he died, almost every employee he ever supervised travelled back to his funeral.  One of them, Jeb Beavers, summed it up well when he explained, “Bill Mavity was the hardest boss I ever had, but he was even harder to quit on.”  Pretty  good eulogy.

 

9.       Expect professionalism, no matter what the setting.

 

10.   Respect your company or do not expect your employees to do so.

 

11.   Never stop asking how you are doing and how you treat your people, or how well your safety processes function.  Never rest on your laurels.

These are a few of my ideas.  What do you believe leads to great customer service?

Howard

P.S.  Visit South Africa, Zimbabwe and Botswana.  It’s safe for tourists, the people are great, and you may learn a bit about customer service.  Oh … and a shout out to my Atlanta Delta flight crews … .

Posted in attitude/culture, employee engagement, hospitality, management and leadership, recruiting, retail, safety programs, union organizing | Tagged , , , | Leave a comment

Will the EEOC Treat You Like A Criminal For Asking About Criminal Records?

Posted on May 29, 2013 by mavity2012

A few practical ruminations….

Many of us remain a bit surprised that even the EEOC has so many problems with employers refusing to hire applicants with criminal records. certainly there are problems, but do the inquiries really warrant class action-type focus?

Regardless of our opinions, the EEOC is pursuing expensive systemic investigations about such employer decisions . . . and it usually starts with a single individual’s EEOC charge. To oversimplify, the EEOC determines that the requirement has an adverse impact against a group, and then challenges the necessity of the standard.

Here are a few “practical” observations from our Columbia attorney, Matt Korn, and me.

The most common problems we have encountered with criminal background screens are:

(1) screening for convictions that are not job-related (as an example, the EEOC objects to exclusion of employees for conviction for child pornography when the employee will not have access to a computer or deal with children);
(2) screening for convictions without a time limitation (e.g., all felonies for violent crimes, not matter how old);
(3) screening for arrests or currently pending charges without investigating the underlying facts; and
(4) not providing an opportunity for individualized review.

The EEOC requires employers to review (1) the nature of the crime (e.g., violent, theft-related, etc.); (2) the amount of time since the conviction; and (3) the nature of the job held or sought.

Guidance

Ideally, we would be able to look at the job description for each position and tailor the screen to the duties of each particular job. For employees who will be working closely with other employees or the public, violent crimes are likely job-related. For employees with access to personal or confidential information, or valuable inventory, theft-related crimes are likely job-related. For an employee who works in a warehouse, DWI/DUI or related offenses may not be job-related, unless the employee drives a company vehicle or part of their responsibilities include driving for work. As to child pornography and similar convictions, we would suggest that there are numerous reasons for exclusion based on the requirements of many jobs. It may not matter to the EEOC leadership, but it is hard to imagine decent investigators and judges harshly treating employers on this one … just speculating.

The length of time is trickier, because the EEOC provides no guidance in this area. What we attempt to do is to determine a time period that protects the Company from negligent hiring/retention/supervision claims and also is not too long to violate the EEOC’s guidance. We often recommend 7 years for felonies, and 3 years for misdemeanors. This is the time since the release from prison, if applicable.

The EEOC cautions against using arrest records for screening purposes, as people are arrested all the time without cause. Therefore, if an employer wants to consider arrest records, they have to make some kind of inquiry into the circumstances leading to the arrest. If the underlying facts demonstrate that the individual has done something that could put the Company at risk, then the exclusion would be justified. However, this approach takes more than just looking at the arrest record and may not be practical for all employers.

Individualized Assessment

Finally, employers should be making an individualized assessment. Generally, we recommend providing the applicant/employee with an opportunity to explain the conviction record before disqualification. If the applicant/employee provides sufficient information that mitigates the offense (e.g., worked successfully for a competitor without incident), then the Company may decide to hire the applicant/retain the employee. However, these types of “waivers” should be tracked carefully to avoid disparate treatment claims.

Matt Korn’s article, “By The Way, Are You A Criminal?” provides more detail.

Howard & Matt

Posted in class actions/systemic investigation, EEOC, employer policies, litigation, recruiting | Tagged , , | Leave a comment

FORGET THAT NEW NOVEL! NEW EEOC PUBLICATIONS ARE HERE!!

Posted on May 23, 2013 by mavity2012

I  found this post and links by fellow attorney-blogger, Philip K. Miles III of “Lawfice,” to be quite useful.  I agree with his instruction … for your “Memorial Day reading.”  Actually, while I love to read stuff like this in my off time, I truly hope that none of you will devote your Memorial Day time to reading this material unless (a) you have a craft beer or glass of wine in hand and (b) are sitting somewhere with your feet kicked up and the wind in your hair.  On second thought… read them when you get back….

 From Philip…

Wow, I can hardly keep up with all of these new EEOC publications. Here are the links:

In case you didn’t have any plans for the three-day Memorial Day weekend . . . .

Posted in ADA, aging workforce, discipline and discharge, EEOC, employer policies, wellness | Tagged , , , , , , , | Leave a comment

IT’S NOT OUR FAULT – IT’S THEIR FAULT!!

Posted on May 20, 2013 by mavity2012

 

I’m not talking about kindergarten playtime or its “adult” equivalent … politics.

Any time multiple employers are involved, labor and employment matters becomes much more complicated. The classic example is a construction site.  OSHA refers to such settings as “multi-employer worksites.”  Multi-employer sites are not limited to construction sites.  Do you use temps?  Have contractors or consultants performing work on site?  Maintain locations in malls, resorts, or arenas?  Host trade shows?  Build autos, aircraft or ships?  On occasion, every work site becomes a “multi-employer site.

Sadly, we know that people increasingly do not want to accept blame.  It’s much easier to allege that one was mistreated because one has a disability condition under the ADA, complained about wage issues, belonged to a protected group . . . or is a Mets fan. Well . . . actually discrimination against Mets fans is encouraged and serves the societal good.

The Corporate “Blame-Game”

But, hey, why should corporate entities be excluded?!  As we painfully see in the nightly news, corporations can also blame someone else.

Nowhere is this “blame game” more of a problem than in a OSHA inspection.  OSHA enters multi-employer site to investigate a workplace death, and everyone is eager to show that they exercised due diligence and complied with the law.  Fear of liability and urge to “CYA” rears their ugly heads.

Defending Against OSHA Citations Does Not Necessitate
Blaming Another Employer

Usually, the first employer OSHA encounters tries to be “helpful” and quickly makes it clear that “it wasn’t our fault!”  Unfortunately, some Compliance Officers understandably appreciate the thorough helpfulness of this employer and may rely too much on the one employer’s rendition of facts.  After all, most Compliance Officers are swamped and it is all to easy to allow one party to shade the facts.

Factor in that, just as employees may have personal grievances, employers may have pre-existing complaints against one another.  As an example, if a general contractor is already justifiably riding a sub about quality or falling behind schedule, the OSHA inspection provides an opportunity to intentionally or inadvertently morph that grievance into, “the general contractor was pushing us too hard . . . safety fell by the wayside.”

The Blame Game Usually Doesn’t Work . . . At least In
The Long Run

State and Federal-OSHA follow different variations of a “multi-employer citation policy,” which usually goes like this….  Cite the:

• “exposing employer” (the employee’s actual employer and supervisor);
• “creating employer,” (created the hazard);
• “correcting employer,” (has a duty to address the hazard”); or
• The always vexing “controlling employer,” which encompasses employers with some practical or contractual duty to maintain or oversee safety at the site . . . or . . .

• All of the above!

OSHA can, and does cite more than one employer because no employer can delegate its ultimate duty to protect its own employees, and the modern workplace often presents intertwined safety responsibilities.  Blaming another employer may not get one off of the hook.

Moreover, OSHA doesn’t focus on employer “intent” to make out a violation, except in determining “willful” or similar classification.  Put simply . . . blaming or “bad mouthing” another employer may not protect the blamer from citation.

More importantly, if one employer makes the accident look willful, or the general contractor to look negligent, they may be caught up in this negative portrait because they didn’t exercise due diligence to meet their duties.  I.e., why did they rely on this employer that they now so eagerly criticize . . . .

Admittedly, the “blame game” may allow an employer to avoid OSHA citations, but the facts will come out in any later more involved litigation.

Moreover, “Corporate Karma” exists.  Often the recipient of the blame is a powerful general contractor or site-owner/customer with a long memory.  Being a “blamer” does not seem to be the best corporate marketing strategy.  “Burn no bridges . . .”.

Action Points

1. Review your contracts.  Before work begins or another employer comes on site, both parties should set out the “real world” division of safety responsibilities.

2. Do not waste time complaining about OSHA’s final Summit decision on “controlling employers.”  It’s the law.  Read OSHA’s CPL Directive and the Summit decisions.  Plan accordingly.

3. Weigh Risks.  It is not wise to shift safety responsibilities to someone else if their errors may affect you.

4. Agree in advance about how any governmental investigation will be addressed on site.  Compliance Officers are supposed to involve all employers on site, but they can be thwarted.

5. Be honest about facts.  Avoid “bad mouthing thy corporate brother.”  Absolutely set out your role and responsibility, but to put it bluntly . . .” don’t try to bad mouth” other on-site employers.  Dispassionate factual explanation is more effective and credible than the corporate-equivalent of “trash talk.”

5. Cooperate, but do not “conspire.”  Run your own case.  Don’t “agree to a story.”

6. Look at the “big picture.”  OSHA is merely “the appetizer.”  How one handles the OSHA inspection may harm one’s defense in subsequent matters.

 
Posted in civil and criminal exposure, construction, government inspections, MSHA, NLRB, OSHA | Tagged , , , | 1 Comment