WATCH OUT FOR “REGULATION BY SHAME”

Posted on May 16, 2013 by mavity2012

When OSHA Assistant Secretary Michaels and Jordan Barab famously admitted that OSHA was utilizing large penalties accompanied by harsh press releases to “motivate” employers to comply, I had mixed feelings.  Fear is a great motivator.  Aggressive publication of legitimate noteworthy OSHA citations has a role in the “carrot and stick” process of safety enforcement.  Moreover, I understand that the former OSHA Region IV Administrator first used the phrase, and frankly, I doubt that she misused the approach.  However, I was concerned that OSHA might issue more harsh penalties and press releases than deserved, in order to “motivate” employers. Those concerns may have been valid, and Corporate entities would do well to consider this increasingly common  “approach.”

 Almost every week we now see disingenuous press releases, which seem designed to suggest bad behavior associated with even more “routine” OSHA  violations.  These press releases can cost U.S. companies business where customers take such releases at face value.  We have seen similar use of press releases at the EEOC.  A suit may be announced by the EEOC with great fanfare, embarrassing a Company.  Months later, the case is settled for a nuisance sum indicating there was little merit, and both sides simply wanted to be done with it.  Revised press releases are seldom issued – I doubt that after we were all shocked by the EEOC’s press release about its recent $240,00,000 ADA award, we will see a release trumpeting that the Court reduced it to $1,600,000, even though we all knew that the statute required such a reduction.

 We have noticed OSHA press releases that tout serious or repeat citations accompanied by comments that “an accident could have been prevented” or similar comments (check OSHA’s newsroom).  The clear implication is that the citations were related to the accident.  However, closer examination suggests that the citations had nothing to do with the accident.

 Every OSHA violation matters, but issuing and publicizing a repeat citation for a missing toe rail or knock-out on an electric cabinet in a way that suggests that these often large-dollar violations were related to the accident is disingenuous.

 Whether “deserved” or not, employers must prepare for and hopefully avoid these damaging press releases, and more importantly, protect their workers.

 So, irritation aside, what’s the relevance to you, the employer?

 1.         OSHA is right about one-thing, . . . fear is a motivator.  Upper management needs to emphasize to front line managers that even the most minor safety violations can lead to heavy-handed OSHA press releases, which can devastate business reputation.

 2.         The big dollar penalties are not primarily coming from worker deaths.  They come from “repeats” of common workplace violations, such as missing knock-outs on electric panels, broken ground plugs, a fire extinguisher on the floor, boxes blocking an electric panel, a misaligned guard on a small grinder, etc.  These items quickly result in $70,000 repeat penalties because . . .

 

  • The Administration extended the period for repeat violations from three (3) to five (5) years.
  • The test of a “repeat” violation is “substantial similarity,” which is generously interpreted by judges, and means little more than the same “hazard” and same or similar standard.
  • Certain common violations will occur unless the employer consistently maintains focused regular inspections at all plants and keeps this concern front-and-center with plant management.  Even then, a ground plug can break off of an extension cord minutes after it was inspected, and if OSHA should be on site. . . .

 3.         Where harmful press is a concern, don’t wait until OSHA citations are issued to retain counsel.  There may be strategies that even sophisticated employers are unaware.

 4.         Ensure that not only the Safety Department, but P.R., Sales, Compliance, Counsel and top executives are aware that potentially devastating press releases can arise from a seemingly “routine” OSHA inspection.

 5.         OSHA’s general cut-off is to issue a press release where more than $40,000 in penalties are involved … a much lower threshold than for “significant cases” or for entry to the “Severe Violators Enforcement Program” or SVEP.  So be forewarned.

Posted in managing legal matters, MSHA, NLRB, OSHA, settlement strategies, union organizing, willful | Tagged , , , | Leave a comment

Combustible Dust Explosions and Compliance – Especially For Food Processors

Posted on May 13, 2013 by mavity2012

 

I have linked to an Interview by the good folks at Chem.Info.com, an excellent publication and provider, especially for food processors and related businesses. 

We represented construction employers at the 2008 Port Wentworth Sugar Plant (Imperial Sugar) explosion and both before and since that explosion, we have handled many combustible dust matters in food processing, wood and paper, coal products, plastics, foundries and for numerous other manufacturers.   Combustible Dust compliance remains one of the most understood and most dangerous of safety compliance areas.  For more information on the Imperial Sugar explosion, which remains highly instructional, go to the Savannah Daily News archived special coverage.

Safety Scene: Industrial Explosions
Fri, 05/10/2013 – 9:16am
Krystal Gabert, Editor

Interview with Howard Mavity, Partner, Fisher & Phillips LLP

Chem.Info’s recurring Safety Scene feature focuses on how to improve safety in processing plants. In this installment, we looking at explosion hazards facing processors, what the fallout of an industrial explosion can be and what processors can do to mitigate their risks. We spoke with Howard Mavity of the law firm Fisher & Phillips about industrial safety.

Q: What factors present the greatest threat of explosion within processing plants?

A: First, manufacturers face Industry-specific challenges.

Since the catastrophic Imperial Sugar explosion (where I was on site for the first seven days) most food processors now recognize some potential for combustible dust explosions and “deflagration,” which refers to the catastrophic pressure wave caused by the startled cloud of dust triggered (and ignited) by the initial explosion. However, so many factors are at play that even comparable “baking” facilities may present widely varying amounts of problems, or none at all.

Likewise, “breading” processes and powdered beverages may present significant risks, and properly stored silos of sugar raise little concern. My point is that few safety and production subjects depend more on the specific facts.

One point is clear: almost every food processor which uses or generates small particles should conduct a Process Hazard Analysis (PHA) to determine hazards, and if necessary, solutions.

Second, manufacturers face  operational challenges

An attitude of “we’ve never had a problem before” is a significant problem. Processors would do well to remember that the sugar refinery had gone over 90 years without an event… until one factor changed. Many food processes and equipment have not changed in many years, and combustible dust control was not the manufacturer’s concern when they were developed.

“Management of Change” is my largest concern. Many are aware (please continue reading at Chem.Info site)

Posted in civil and criminal exposure, combustible dust, consensus standards, emergency response, food processing, general duty 5(a) citations, manufacturing, OSHA, willful | Tagged , , , | Leave a comment

I Won My Case, But I Can’t Recover Those Costs?!

Posted on May 5, 2013 by mavity2012

This post is mainly for lawyers, but non lawyers (i.e, “clients”) should also read it because almost every client I know has wanted to get every possible fee or cost back from unsuccessful plaintiffs from what they viewed as frivolous law suits.  Increasingly one of the larger costs is for obtaining and managing electronic data, but you may not be able to recover those six and seven-figure costs.

Read this fine (and troubling) post from Mack Sperling on the always interesting North Carolina Business Litigation Report.

Fourth Circuit Takes A Narrow View On Recovery Of E-Discovery Costs

Posted on May 1, 2013 by Mack Sperling

You’ve undoubtedly prevailed in a federal case — either at summary judgment or after a trial — and you have probably struggled with what you are entitled to recover as costs under 28 U.S.C. §1920.  And recently, your client, being the victor, most likely has asked about the recovery of its costs associated with the production of electronically stored information.

The Fourth Circuit’s decision on Monday of this week in The Country Vintner v. E & J Gallo Winery, Inc. gives answers to those questions, but your prevailing party client won’t like them.

Gallo ran up bills from e-discovery vendors of more than $100,000 in its production to the Plaintiff of its ESI, and it sought to have the District Court award that as an element of costs.  The bulk of that amount was for “flattening” and “indexing” the ESI. The Court defined that as the “initial processing” of the data, which:

involved decompressing container files (e.g., ZIP files or Microsoft PST files); making the data searchable by extracting text and creating Optical Character Recognition for text that could not be extracted; indexing the data; removing system files that were known not to contain any user-generated content; and removing duplicate files. 

Op. at 5.

That part of the application for costs was denied by the District Court, which was affirmed by the Fourth Circuit.

(CONTINUED AT THE NC BUSINESS REPORT). 

Posted in litigation, managing legal matters, settlement strategies | Tagged , , | Leave a comment

Part 2: Now Let’s Find Out Why Employees Make Those Bad Choices

Posted on May 2, 2013 by mavity2012

A few days ago, I ended my analysis of “why workers choose to get injured or killed,” by proposing that as a possible first step to learn the answer, employers should determine their unique safety “culture.”  Attorneys like us can analyze an employer’s safety management processes, but an often overlooked tool is to conduct an employee safety attitude survey.

 A FEW WARNINGS

 

1.         Expect to be surprised and probably troubled by results.

2.         Supervisor answers usually differ markedly from employee perceptions.

3.         Any time one surveys employees, you create an “expectation,” so don’t set the   survey results on a shelf and forget about it.

4.         In determining your existing culture – you may be startled by what you learn.

  • As an example, 93% of construction employees in one survey said that their Company was currently at risk of an injury or death caused by one of five (5) avoidable workplace behaviors….
  • “Get it Done”
  • “Un-discussable Incompetence”
  • “Just this Once”
  • “This is overboard”
  • “Are you a team player”
  • And 50% said that they had already seen an injury or death caused by one of the above five issues….
  • Even more troubling, despite these concerns, only 25% of the employees surveyed said that they would confront a co worker acting unsafely or speak up about a hazard.  In other words, only one in four would tell a coworker to put on their fall protection!  Even after expressing their fear that they or their co-workers were at risk of serious injury.  And I’ve seen this all too often.  Why? 

 So let’s find out … review the “Sample Survey Questions,” and ask yourself…

  • How would your employees answer some of the following questions?
  • How would you and other managers answer these questions?
  • Would you be willing to bet a steak dinner that the answers are the same for both groups? 

 Sample Questions  (Answer by: “Agree/Disagree/Strongly Agree/Strongly Disagree”)

  • We practice on the job what is in our Corporate Safety Policy.
  • I always receive job-specific training.
  • Supervisors hold us to safety rules.
  • Contractors on site work safely.
  • All of our people are trained before they start work.
  • We talk about safety at every meeting.
  • I hold coworkers accountable for safety.
  • Safety is the number one priority in my mind when working each day.
  • Management clearly considers the safety of employees of great importance.
  • I am sure that it is only a matter of time until I am involved in an accident.
  • Sometimes I am not given enough time to get the job done safely.
  • I am involved with safety issues at work.
  • This is a safer place to work than other companies where I have worked.
  • I am strongly encouraged to report unsafe conditions or near misses.
  • At my site, management turns a blind eye to safety issues at times.
  • Some safety rules and procedures do not need to be followed to get the job done safely.
  • Some safety rules and procedures are not really practical.
  • It is necessary to let safety slide a little in real life.
  • Safety is one of the first things upper management talks about when they come on site.
  • Upper management seldom comes on the floor.
  • Upper management is involved in safety training.
  • Upper management is involved in new employee orientation.
  • Our safety record is one of the top two things to owners.
  • Upper Management often mentions safety in company communications.

 Employee attitudes and “culture” will not change merely by utilizing consultants and all of the  new and cool emerging safety ideas.  Management must really decide to make safety a priority, set specific goals, use financial incentives/disincentives for managers, come with ideas to engage employees, and then keep on it.  Changing reporting relationships so that the chief company safety manager reports directly to the CEO or COO is an important symbolic and practical step… but what will leadership do next week?  Next month?

Continuous Quality Improvement in safety processes is just another way of saying that a safety plan can never stay the same – employees lose their attention and everyone becomes nonchalant (remember my last post about unwise choices?).

 Safety guru, James Roughton posted an article today by Terry Mathis, entitled,  There Is No Stasis In Safety: Safety Culture Excellence, which does a fine job of explaining that one has to keep trying new things and keeping the program fresh.  I’ll end with a quotation from their article:

 There are two strategies in safety that don’t work; one is doing nothing and the other is trying to maintain the status quo.  The sad truth is that safety is constantly either getting better or getting worse. 

 What do you think?

Posted in construction, cultural changes, employee engagement, generational differences, management and leadership, reducing injuries, safety programs | Tagged , , | Leave a comment

Bad Facts Make Bad Laws . . . .

Posted on May 1, 2013 by mavity2012

Former Clinton official Webb Hubbell summed it up well…

There is an old adage in politics and the law that “Bad Facts, Lead to Bad Law.” In law, a horrible fact situation full of sympathy for one side can lead to a Judge or a jury making a poor decision or bad precedent.

In politics a bad or terrible tragedy may lead to sympathetic legislators making a law that seems to redress one inequity, but it has terrible consequences for society.

When an accident occurs, such as the recent Texas fertilizer plant explosion, there is a rush to pass new laws or to use an accident to justify resuscitating unsuccessful past legislation.  Unfortunately, such laws may not contribute to better workplace safety.  Instead, they may include interest groups’ “wish lists,” which may have little to do with the incident which triggered their proposal.  Ideology should not trump objective analysis.  The question must always be “will this law improve workplace safety?”

 

The day after the Texas explosion Congressman George Miller introduced legislation (law text) to increase Federal-OSHA power over the 21 State OSHA Plans, along with provisions drawn from the Protecting of American Workers Act (PAWA) which has not progressed in four years (and whose weaknesses have been discussed).   The explosion occurred in Texas, which is a Federal-OSHA state.  So why does an explosion in Texas demonstrate a need for more Federal oversight of OSHA State Plans?  Well, . . . it doesn’t.  But “bad facts” present opportunities to “ make bad laws.”

 

The current Administration prefers a centralized management approach, and has reduced the authority of OSHA Regional and Area Office Leadership; many of whom are highly seasoned professionals.  One could excuse those civil servants if they feel as if D.C. seemingly distrusts its own people.

 

D.C. leadership appears to distrust State OSHA Plans even more than its own system, and acts on the assumption that D.C. always knows best.  In the last few years, Federal-OSHA has increasingly tried to induce State OSHA Plans to adopt new Federal “approaches.”  The problem is that many of the State-OSHA Plans believe that their approach may be more effective in their State than the one-size-fits-all punitive approach sometimes promoted by D.C.

 

Congressman Miller stated that he introduced the legislation in response to the recent GAO Report, “OSHA Can Better Respond To State-Run Programs Facing Challenges.” This is the latest report criticizing OSHA’s State Plans, and focuses on underfunding and staffing, especially for OSHA Plans in Nevada, Arizona, California, Michigan, New Mexico, Kentucky, Tennessee, Utah and Alaska.

 

The Report accurately notes that the identified State Plans are increasingly struggling with adequate staffing and funding.  However, the Administration has been critical of the State Plans since coming into office, both before and after funding set-backs.

 

Given how strapped Federal-OSHA is, one does not see how Federal-OSHA would provide the help most desperately needed by these State OSHA Plans . . . more money.

 

A greater motive may be a dislike of the State Plans doing things their own way.  A reasonable question is whether greater Federal-OSHA intervention would improve the State OSHA Plans. 

 

Let’s look at Federal-OSHA.  Everyone should agree that Federal-OSHA needs a substantial budget increase so as to hire and train more inspectors without having to eliminate vital consultation programs.  However, the political reality is that OSHA will not receive the funds it reasonably requires.  Thus, OSHA has all but eliminated the consultation programs, which many experts within and outside of OSHA believe accomplished a great deal.  Also, D.C. shifted more resources to enforcement.  Despite a stagnant budget, OSHA continues to shift money to its whistle blowing focus.  While we do not disagree with the need to protect whistleblowers, most management labor attorneys will tell you that they rarely encounter legitimate retaliation claims.  Nevertheless, many of the current Administration’s supporters strongly believe that encouraging whistle blowing must be one of OSHA’s primary focuses.  But it seems difficult to defend the transfer money when OSHA cannot adequately fund its core safety responsibilities.

 

What Will Fed-OSHA Add?

 

There are certainly problems with some of the State OSHA Plans, but few of these problems could not be corrected by an infusion of cash. (OSHA State Plan Analysis).  Can Fed-OSHA even assist in more training when it is cutting training and development for CSHO’s?  Can Fed-OSHA provide technical assistance when its own Salt Lake lab is facing challenges? 

 

A big concern is that instead of cash and support, D.C. will add more responsibilities to State Plans, which will further hinder their effectiveness.  As an example, State Plans are unsure how to respond to Fed-OSHA’s February 21, 2013 Interpretation Letter encouraging more third-party involvement in OSHA inspections.  Changes like this Interpretation will disrupt the inspection process and place more burdens on already overworked OSHA Compliance Officers.  The proposed law isn’t awful, but it does add to the State’s burdens and gives Fed-OSHA faster more wide ranging powers than under Section 18 of the OSHAct of 1970.

 

Some advocates of the legislation point to Nevada-OSHA and the problems it encountered with the mammoth, Las Vegas City Center project.  Nevada-OSHA is a professional operation, and many observers believe that City Center’s problems reflected the perfect storm of a gigantic project with 9,000 employees, almost 100 architects, and local unions who could not supply an adequate amount of qualified crafts people . . . not incompetent OSHA professionals.

 

OSHA has taken a large role in Nevada-OSHA’s operations, without changes in the law, although I am not aware of studies noting great improvements in its operations. This begs the question, does Fed-OSHA reasonably need more powers to deal with State-OSHA Plans?  The GAO Report cites Hawaii cutting the Hawaii-OSHA budget by 50%.  However, Federal-OSHA was able to take over Hawaiian inspections without new laws.

 

Absent more funds, legislation needs to be scrutinized to determine if it will make OSHA more effective and workers safer.  Valid concerns have been raised about State OSHA Plans, but the proposed legislation does not seem to address those concerns, and may add more burdens.  Some State Plans may just close shop and let Fed-OSHA take over.  One might suspect such an outcome appeals to some inside the beltway, but surely not in this era of inadequate OSHA budgets.

 

It would be great if there could be a bipartisan effort to simply provide more money to Federal-OSHA and the State Plans, and to make it unnecessary for Federal-OSHA to impose more demands on already overextended personnel.  Our President established April 28 as Workers’ Memorial Day.  Wouldn’t a bipartisan effort to better fund OSHA be a great way to honor next April 29, 2014?

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

Matt Korn On MSHA.

Posted on April 30, 2013 by mavity2012

Matt Korn, a former attorney with D.C. MSHA, who works out of our Columbia office, finished moving into a new house this weekend, and celebrated by engaging in a veritable explosion of blogging.

I present for your enjoyment, the following no-doubt scintillating blogs…

Posted in civil and criminal exposure, MSHA, Washington, whistleblower/retaliation | Tagged , , | Leave a comment

Why Do Workers Choose To Get Hurt or Killed?

Posted on April 30, 2013 by mavity2012

They may not know it at the time, but workers (and companies) make choices that result in workplace accidents. While there are many contributing factors to workplace accidents, on some level, bad decisions were made.

J. A. Rodriquez recently wrote an interesting article “Fatalities at West Fertilizer Company: Was the Enemy of Safety Responsible?” on how workers engage in “incremental rationalization” to bit by bit justify ultimately disastrous decisions. He analogizes to our incremental justification in deviating from a diet where the rationalization proceeds from, “I know that I shouldn’t have it” to “maybe just this once,” to “I deserve this,” and so forth.

I have been associated with almost 500 workplace fatalities and my partner, Ed Foulke, another 200 or so. We have analyze these accidents, and close to 70% involved errors by well-trained personnel. Most of those individuals were described as solid good people, among the best in the Company, or devoted to their family.

And yet they made decisions which caused or contributed to their death, and as in confined space entry cases, perhaps the deaths of others.

The common explanation is that we  become “nonchalant” about hazards to which we are daily exposed. However,  Mr. Rodriquez has further explained this seeming nonchalance by explaining that this mind-set gradually develops over time.

Companies and their leaders share the blame for allowing a culture that tolerates this attitude. Sometimes entire businesses may engage in this stealthily creeping “incremental rationalization.”

I frequently refer to “guy disease” . . . the seemingly endless capacity of males to make unwise and unsafe decisions despite clearly knowing better. Sorry guys . . . women may be open to criticism on other fronts, but they simply do not as readily by-pass steps, cut corners, or just plain make bone-headed mistakes. But even we chromosomally challenged males didn’t start cutting corners and becoming nonchalant about major safety issues… we got there slowly.

Corporate Leaders Must Maintain A Culture Constantly Reminding Workers To Work Safely

It comes back to that oft used, seldom understood term, “culture.” Corporate leaders must drive the type of culture in which employees are continually reminded to pause, think, and make wise safety decisions. Continuously experiment; keep it interesting. Repetition is a good thing.

Almost all executives state that safety is their first priority, and generally they mean it. However, many of the same leaders do not know much about their safety processes, and are not focusing on the safety in the same fashion they work to obtain the corporation’s other goals.

After experiencing a workplace fatality, serious injury, or large OSHA citation, executives may quickly grasp that it’s their responsibility to “change the safety culture.” We all know “where the buck stops.” But exactly what is their culture…?

The employer first needs to determine their safety culture, and few employers utilize one of the most effective tools – an employee safety attitude survey. A recent Fisher & Phillips survey of some of the most safety-conscious employers found that only 16% regularly use such surveys.

We use such surveys in other contexts, so why not use them for safety as well? HR-driven employee attitude surveys are less effective without safety inquiries, so perhaps questions about the safety culture can be incorporated into existing tools.

We’ll discuss employee safety culture surveys in our next blog.

Howard

Posted in attitude/culture, cultural changes, incentive plans, reducing injuries, safety programs, wellness | Tagged , , , | Leave a comment

What’s So Important About Work Gloves?

Posted on April 23, 2013 by mavity2012

Work gloves are so ubiquitous that we may forget that gloves can present as many complex challenges as any type of PPE. The gloves selected may not address site-specific hazards, especially for a mobile workforce, such as construction. Not only does the texture and material affect performance, but so does the way in which the glove works with other PPE and clothing. Some employers find that changing gloves reduces a large number of the minor injuries and strains that plague their workers.

We encourage you to read the EHS Today Article, Breaking Bad Habits (or How To Establish a Chemical Resistant Glove Program). While on the EHS site, perhaps read, Better Choices Improve Protection For The Construction Industry, and Myth Busting: Six Things You Thought Wrong About Work Gloves.

Here’s a teaser from David Shutt’s article, with a Breaking Bad theme . . .

Even Hollywood is recognizing the importance of appropriate personal protective equipment in the workplace, even when that workplace is out of the ordinary. Are your employees protected from the sometimes hundreds of chemicals found in their workplace?

It warms my heart when Hollywood pays homage to the tireless efforts of us regular working folks, particularly those of us in industrial professions. I recently watched the first episode of “Breaking Bad,” the highly acclaimed television show about high school chemistry teacher Walter White, who turns into a drug kingpin to secure a better financial future for his family after he is diagnosed with terminal lung cancer.

With his background in science and chemistry, there was no way Walter was going to start “cooking” meth without donning the proper personal protective equipment (PPE). …

What Is Reasonable Diligence In Selecting PPE?

By now, you may be wondering about your duty to make proper selections. A 2009 decision offers some general guidance. Basically, what degree of knowledge and past experience did you have about the work processes, the site,… ask, if I were OSHA, would I conclude that a reasonable company should have recognized these hazards? “Did I act with reasonable diligence?”

With respect to knowledge, the record lacks evidence that Smalis knew this employee was exposed to airborne lead in excess of ten times the PEL and, therefore, that his respirator was inadequate.

We find, however, that the company could have known of this violative condition with the exercise of reasonable diligence. See Pride Oil Well Serv., … finding constructive knowledge where employer “could have known of the condition with the exercise of reasonable diligence”; Par Elec. Contractors, Inc., … noting that reasonable diligence involves “a consideration of several factors,” including employer’s obligation to have adequate work rules and training programs, adequately supervise employees, anticipate employee exposure to hazards, and take measures to prevent violations).

Smalis admitted that lead levels at the worksite were “high,” and was specifically aware that lead levels in areas outside of the containment were high based on its prior experience in Allegheny County. Yet, the company failed to monitor this employee or otherwise monitor the levels of airborne lead topside to ensure the selection of an adequate respirator.

In these circumstances, we find Smalis failed to exercise reasonable diligence, and had constructive knowledge of its failure to provide this employee with an appropriate respirator.

Obviously, this discussion leads to consideration of whether you have updated realistic site-specific Job Safety Analysis (JSA), which determined the proper PPE. More on that topic another time!

Thanks,

Howard & the F&P Crew

Posted in OSHA, PPE | Tagged , , , | Leave a comment

Discipline Is Essential For Safety, So Why Don’t We Do It?

Posted on April 22, 2013 by mavity2012

An effective safety process requires consistent discipline to support other company safety efforts, but it doesn’t happen.

OSHA is aggressively suing employers for allegedly using safety rules to terminate employees for reporting workplace injuries. Indeed, it often turns out that almost the only employees terminated for safety violations were those terminated for unsafe behavior resulting in an injury. Why? The employer was sloppy about disciplining employees for unsafe behavior, and the only time that the employer “caught” employees acting unsafely was… investigating an injury.

Employers seldom successfully assert the “Employee Misconduct/Isolated Incident” affirmative defense to employee OSHA violations.  Why?  The employer cannot prove that they manage an effective safety program, including:

• documented safety rule or procedure;
• proof that the employee was trained;
• evidence of employer’s efforts to monitor and enforce the safety program, AND . . .
• past discipline for unsafe behavior (more than an oral warning or chewing-out).

You guessed it. Employers generally cannot show the element of regular safety-related discipline.

Even the Most Safety Conscious Employers Admit That They Don’t Adequately Use Discipline

F&P’s 2012-2013 survey of large general contractors with some of the U.S.’s best safety programs revealed that 56% were “not satisfied by how often supervisors discipline employees for unsafe behavior.”

To give you an idea of just how well these respondents are doing in other more costly safety efforts,

43% – provide OSHA 30-hour training to over 75% of supervisors
59% – formally include safety in executive performance evaluations (wow!)
61% – use observation systems requiring supervisors to make regular
observations of compliance and non-compliance

So, over one-half of some of the most safety-oriented employers admit that safety-related discipline is not where it should be.

Why?

Various surveys list one of the following reasons why supervisors do not discipline employees:

• the supervisor is afraid that they will get their employers in trouble.
• they haven’t been trained and don’t know how.
• They came up through the ranks.
• Discipline is only discussed when something bad happens, like a lawsuit.

Another question from F & P’s Survey supplies a partial answer… most companies make almost no consistent effort to train supervisors when and how to discipline employees.

Our Survey asked… “How often do you provide “HR” training to frontline supervisors
(i.e. How to discipline employees)?”

37% Rarely

25% Occasionally

22% Annually

7% More than once a year

7% We have a formal supervisory program or company “university”.

So only 7% maintain a formal supervisory training program and another 7% provide HR-training more than once per year.

I believe that the Action Points are pretty clear for this Blog.

Howard

Posted in discipline and discharge, employer policies, OSHA, reducing injuries, whistleblower/retaliation, workers comp | Tagged , , | Leave a comment

Count The Cost Before Waging The War

Posted on April 22, 2013 by mavity2012

 

An excellent piec by my Portland, Oregon partner, Rich Meneghello….

When Sun Tzu wrote “The Art of War” in the sixth century B.C., he probably wasn’t thinking about how his advice would apply to employment law litigation in the 21st century, but he might as well have. One of his most famous quotes from that epic military treatise is “Those who wish to fight must first count the cost.” A recent example from Washington state shows the value of following this sage advice.

The Field Of Battle

Andrew Fiore worked for PPG Industries for a relatively brief period of time, roughly nine months, in 2009.  He was employed as a Territory Manager, which called for him to service retail stores throughout Washington and Oregon, assisting in the selling of paint and paint products for PPG. His actual job involved him managing color samples at the paint counter of these retail stores, including rotating stock, building displays, and performing manual labor. His job also called for him to directly interact with the customers and contractors who were looking to buy products.

PPG considered him an “exempt” employee, which means they paid him a fixed salary and did not pay him any overtime. In their view, his primary job responsibility was “promoting sales,” which meant that he fit into one of the white-collar exemptions that allowed them to pay him a fixed salary no matter how many hours he worked per week. According to Mr. Fiore, he worked a considerable amount of time beyond 40 hours per week during his brief stint at PPG, travelling to and from the 11 stores in his territory, handling after hours email and phone calls, and other functions besides his in-store job responsibilities.

After his employment at PPG ended, Mr. Fiore brought a wage and hour lawsuit against PPG, contending that his duties principally consisted of manual labor and conducting individual sales, and thus he should have been entitled to overtime pay. After sitting down and calculating how much he thought he should have been paid, Mr. Fiore concluded that he had been shorted about $12,000.

Now $12,000 is nothing to sneeze at. It’s a considerable sum of money to the vast majority of people in this country, and someone who believed he earned that money fairly would certainly not want to give it up. From an employer’s perspective – even an international conglomerate – $12,000 is no small chunk of change either. PPG decided after it received the lawsuit that it was willing to fight Mr. Fiore’s efforts to recoup that money and instructed its lawyers to defend the case vigorously. And fight it vigorously they did. For the next three years, the lawyers for PPG and Mr. Fiore waged a battle over this issue at arbitration, then at trial court, then at the Court of Appeals, and finally at the Washington Supreme Court.

When the dust settled a few weeks ago after years of fighting, the courts concluded that Mr. Fiore was entitled to recover his $12,000 (now doubled to $24,000 as a punishment for “willfully” withholding the overtime pay). And to cap it all off, the Court also told PPG that it had to reimburse Mr. Fiore’s attorneys their fees for fighting the case on his behalf, which total over $700,000. Yes, you read that correctly – nearly three quarters of a million dollars spent fighting over $12,000.

Could It Still Be Worth It?

This is not necessarily an uncommon scenario. For a variety of reasons, employers often far outspend in defense costs what it would have taken to simply settle a case early on. In PPG’s view, this matter was a “test case” that would have national implications for many of its workers, which is one reason to go toe to toe all the way to the state Supreme Court.

In many other cases, employers decide to draw a line in the sand and fight a particular case to set an example for other disgruntled workers (or former workers) who may be thinking about filing a lawsuit but will think twice if they know the company will forcefully fight their case. In still other cases, employers just decide to fight a case on principle grounds – they know they are in the right, and they would rather spend money defending their position than “paying off” someone undeserving of any reward.

Of course, all of these reasons are quite justified, and at the end of the day PPG might say that they would do it all over again if they had to.  But for some employers, another quote from Sun Tzu’s Art of War might be applicable when thinking about fighting employment litigation: “He will win who knows when to fight and when not to fight.” For some companies, spending $700,000 to fight a $12,000 claim is worth the money. For many others, this story is a cautionary tale about when to fight and when to think about resolving a case in a different manner.

For more information contact the author at RMeneghello@laborlawyers.com or (503)252-4262.

 

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