EHS Magazine Discussions of Leading and Lagging Indicators and OSHA

Posted on April 15, 2013 by mavity2012

Last Week, Sandy Smith, Editor in Chief of EHS Magazine, interviewed me for two articles she prepared today on the continued difficulties presented as employers struggle to rely on leading indicators to manage safety rather than relying on workplace injury data – “lagging indicators.”   I enjoyed the interview because Sandy knows her stuff, and EHS Magazine is committed to making a difference in the safety culture.   Review my following points, and then enjoy her two articles, Leading and Lagging Indicators and OSHA and “Survey Offers a Glimpse Into the Safety Practices of General Contractors.”  I will talk on additional findings from our F & P Survey in future articles and posts from different perspectives and focusing on different aspects of the subject… and there certainly are plenty of issues and action points!  Thanks for your interest in these important subjects.

  • At the beginning of 2013, employers widely accepted the following statements as an accurate summary of the status of using workplace injury and illness data to manage safety processes…
  • OSHA is opposed to Safety Incentive Programs which are based on injury and illness rates because they believe that such programs discourage employees from reporting workplace injuries.
  • After dozens of six-figure awards, OSHA has made it clear that it views discipline for violating safety rules as often being a pretext for retaliation against employees who reported workplace injuries.
  • Simultaneously, employers are concerned about of customers who evaluate contractor safety performance based on workplace injury rates, which focus on failures (“lagging indicators”) rather than the “leading indicators” which predict the effectiveness of safety programs.
  • Both OSHA and many experienced employers agree that employers should increasingly focus on “leading indicators” and “behavioral” factors that may prevent accidents. 
  • Unfortunately, despite this belief, most employers, to some extent continue to evaluate safety programs based on injuries (“rate-driven”) and/or base incentives on injury rates.
  • Part of the problem is that there is no consensus as to which leading indicators should consistently be evaluated.
Posted in construction, employer policies, incentive plans, OSHA, wellness, whistleblower/retaliation | Tagged , , , , | Leave a comment

Will OSHA’s New Interpretation Improve Safety?

Posted on April 12, 2013 by mavity2012

Non-employees accompanying OSHA on an inspection of a non-union work site?

This Post is going to stir up some discussion.

Many employers have learned that third parties can use safety issues to bring pressure on employers by harming the company’s reputation and driving a wedge between management and employees. The most recognized effort has been UNITE-HERE’s years- long campaign against Hyatt in which they have emphasized alleged safety problems associated with housekeeping employees; many of whom are also members of minority groups.

However, one should not assume that unions are the only third parties using worker safety issues to bring pressure on businesses. Occupy Wall Street clones and a host of issue-specific organizations have used safety to attack highly visible companies. Unfortunately, because these groups are not composed of the affected workers and may have agendas unrelated to safety, they may distract OSHA, employers and unions from the business of assuring workplace safety.

OSHA has now startled employers by issuing an “Interpretation Letter,” which departs from 40 years of practice, and expands the right of non-employees in OSHA inspections.

The Contents of OSHA’s February 2013 Letter

The recently released February 21, 2013 Interpretation Letter to a United Steelworker safety representative addressed:

whether workers at a workplace without a collective bargaining agreement may authorize a person who is affiliated with a union or a community organization to act as their representative under the Occupational Safety and Health Act (OSH Act). This would include “representing the employee(s) as a personal representative” and “accompanying the employee on an OSHA inspection” in a non-unionized workplace.

OSHA answered, in part:
The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.”…. Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.
The new Letter disavowed and withdrew a March 7, 2003 Interpretation Letter suggesting that the OSHAct imposed more restrictions on non-employee involvement in inspections than OSHA’s new interpretation…

OSHA recognizes that there has been some confusion about these issues arising from a March 7, 2003, OSHA letter to Milan Racic. Although this letter addressed an issue related to your inquiry, it is important to explain the distinction between the situation discussed in that letter and your letter.

The Racic letter merely states that a non-employee who files a complaint does not necessarily have a right to participate in an inspection arising out of that complaint. It does not address the right of workers at a facility without a collective bargaining agreement to have a representative of their own choosing participate in an inspection. To the extent it has been interpreted to prohibit such a right, it is inconsistent with the OSH Act and with OSHA’s regulations. Because of the confusion it has engendered, OSHA is withdrawing the Racic letter.
The following language from the disavowed letter is interesting:
…. 1903.8(a) says in part: ….A representative of the employer and a representative authorized by his (sic) employees shall be given an opportunity to accompany the [CSHO] during the…inspection…for the purpose of aiding such inspection… [clarification added].

1903.8(b) says in part: [CSHOs] shall have authority to resolve all disputes as to who is the representative authorized by the employer and employees…. If there is no authorized representative of employees, or if the [CSHO] is unable to determine with reasonable certainty who is such representative, he (sic) shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

Section 1903.8(c) says in part: The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the [CSHO], good cause has been shown why accompaniment by a third-party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough…inspection… such third-party may accompany the [CSHO] during the inspection [emphasis and clarification added].

Section 1903.8(d) says in part: [CSHOs] are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection. The right of accompaniment in areas containing trade secrets shall be subject to the provisions of 1903.8(d) [clarification added].

According to paragraph A.3.f.(3) of Chapter II of the OSHA Field Inspection Manual (FIRM) (copy of pages enclosed): Where employees are not represented by an authorized representative, where there is no established safety committee, or where employees have not chosen or agreed to an employee representative for OSHA inspection purposes whether or not there is a safety committee, the CSHO shall determine if any other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, the CSHO shall consult with a reasonable number of employees during the walkaround. (my emphasis).

Paragraph A.3.h. says: The CSHO may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection…. If disruption or interference occurs, the CSHO shall use professional judgment as to whether to suspend the walkaround or take other action. The Assistant Area Director shall be consulted if the walkaround is suspended. The employee representative shall be advised that during the inspection matters unrelated to the inspection shall not be discussed with employees.

As you can see, neither the OSHAct, the regulations in 29 CFR §1903.8, nor the FIRM make any provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace. Therefore, if a representative from your union obtains written authorization from a current employee of a workplace to file a work-place safety and health complaint with OSHA on his or her behalf, that representative does not have a right to accompany the CSHO on the inspection walkaround.

Section 1903 (b) describes what OSHA should do when no union represents employees, and that provision cited in the 2003 letter does not seem to easily fit the Secretary’s new interpretation. One could suggest that instead of involving a third-party, the Compliance Officer instead is supposed to conduct a representative number of employee interviews…

If there is no authorized representative of employees, or if the [CSHO] is unable to determine with reasonable certainty who is such representative, he (sic) shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

Read the standard and the Radic letter, and then read the new full February 21, 2013 letter and OSHA’s internal “Talking Points” for a better understanding of OSHA’s reasoning.

Does This Interpretation Make Sense?

We’ll outline a bit of the history associated with non-employee involvement in OSHA processes, and leave a more detailed legal analysis for another time.

The OSHAct and standards provide specific rights to employee “representatives” in a number of circumstances. The most commonly invoked provisions involve employee access to medical information, including medical records under 1910.120(b) and to OSHA 300 Logs under 1904.35. Current and former employees, their recognized union, and their personal representatives do have certain rights. In these standards, OSHA makes distinctions between an employee’s “personal representative” and their “authorized bargaining representative.” As examples…

1904.35(b)(2) Do I have to give my employees and their representatives access to the OSHA injury and illness records? Yes, your employees, former employees, their personal representatives, and their authorized employee representatives have the right to access the OSHA injury and illness records, with some limitations, as discussed below.

1904.35(b)(2)(i) Who is an authorized employee representative? An authorized employee representative is an authorized collective bargaining agent of employees.

1904.35(b)(2)(ii) Who is a “personal representative” of an employee or former employee? A personal representative is:

1904.35(b)(2)(iii)(A) Any person that the employee or former employee designates as such, in writing; or

1904.35(b)(2)(iii)(B) The legal representative of a deceased or legally incapacitated employee or former “employee.

Section 1903.35 broadly defines “employee representative,” but this application discusses employees seeking medical records ostensibly involving the current or former employee.

Section, 1903.8(b), which deals with OSHA inspections, restricts the occasions when it is appropriate to involve a non-employee in an OSHA inspection. One can read 1903.8(a) as treating involvement of non-employees as an exception rather than the rule:

• Compliance Safety and Health Officers shall be in charge of inspections and questioning of persons.
• A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection.
• A Compliance Safety and Health Officer may permit additional employer representatives and additional representatives authorized by employees to accompany him where he determines that such additional representatives will further aid the inspection. A different employer and employee representative may accompany the Compliance Safety and Health Officer during each different phase of an inspection if this will not interfere with the conduct of the inspection.

OSHA’s new interpretation may run counter to the intent of the OSHAct and the standards. In other words, will including individuals who are not employees or representatives of a duly selected union, and who may have agendas other than the workers safety, genuinely “further aid the inspection?” Or will this process impede inspections and distract Compliance Officers, workers and the employer from fulfilling their duties under the OSHAct?

Another concern is how does the unfortunate OSHA Compliance Officer determine that the proffered person “represents the employees?” Does this mean that a third-party need only represent one employee, as in the case of medical record requests? Or does this mean that the Compliance Officer must use some procedure to determine if the third-party represents all or a majority of the employees?

Finally, under the National Labor Relations Act doesn’t the NLRB have responsibility to determine whether a union represents the appropriate bargaining unit? Maybe this is why the Radic letter proposed the use of employee interviews where no representative was present? These are not idle musings….

Section 1903.8 (c) defines possible “representatives authorized by employees.”

The representative(s) authorized by employees shall be employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third-party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third-party may accompany the Compliance Safety and Health Office during the inspection.

Employers will probably debate the intent of 1903.8 before fact finders, but a simple reading of this section suggests that the drafters were thinking in terms of professionals employed by a recognized bargaining agent. Certainly, one is hard-pressed to find instances over OSHA’s years of existence where OSHA or employers treated the standard as allowing a non-employee to accompany the inspection who was not affiliated with a bargaining agent.

OSHA’s internal “Talking Points,” which have been freely shared by some Regions attempt to reassure Compliance Officers that it is  common or at least, not uncommon, for third parties to so participate, but the explanation seems a bit half-hearted. After first stating the recognized practice that “workers with collective bargaining agreements have selected experts from within their union (such as an industrial hygienist from the national headquarters) to act as the walkaround representative,” the Talking Points say…

Workers without collective bargaining agreements have selected individuals from unions or other organizations to act as walkaround representatives. OSHA has generally agreed, and in a number of cases has convinced employers to withdraw their objections to allowing this. For example, during the 2012 Hershey/Exel inspection, members of the National Guestworkers’ Alliance served as walkaround representatives. (Bloggers note – check out the national Guestworkers’ Alliance site).

So, Will This Interpretation Improve Worker Safety?

We all have our philosophical biases, but putting preconceptions aside, I am worried that widespread application of this Interpretation will overwhelm an Agency which is already understaffed and does not need more distractions from its core mission.

The Interpretation imposes an unreasonable requirement on Compliance Officers and their supervisors to make a complicated legal determination where the response may turn a cooperative inspection into a dispute requiring warrants and court appearances, or trigger public attacks by enraged third parties. And let’s be clear, unions seeking to organize a work site are not the only possible interveners. The “Occupy Wall Street” movement has generated spill-off groups, many of whom may not have an ounce of the understanding of the inspection process enjoyed by a union. No one is naïve enough to believe that a group will not hijack the workplace safety process for reasons wholly unrelated to protecting workers.

OSHA is a professional organization and the public might be surprised at how smoothly most inspections progress, even when the work site is unionized. That efficiency allows OSHA to conduct more inspections because they do not have to deal with warrants, public attacks, and constant interruptions by third parties who do not understand or care about the effectiveness of the OSHA system. One suspects that there are many people inside OSHA who are worried about this new interpretation.

Next Steps?

We’ll leave strategy discussions for later after all sides have chewed through the OSHAct and legislative history, and thoroughly considered the legal issues.

However, one point is already clear. OSHA admits that each third-party request should be dealt with on a case-by-case basis. Employers need to prepare now by developing a procedure, and by communicating this new wrinkle to each work site, just as they should already have briefed site management on how to respond to an inspection by OSHA or any other governmental organization.

Howard

Posted in concerted protected activity, government inspections, OSHA, union organizing, unions | Tagged , , , | 1 Comment

Heed Those Warnings About EEOC Systemic Investigations!

Posted on April 4, 2013 by mavity2012

The EEOC Is Serious About Systemic Enforcement, and These Cases Are A Pain!

 We have increasingly warned employers about the EEOC’s increased focus on “systemic litigation.”  While the systemic program started in 2006 under the Bush Administration, the Obama Administration has really embraced it.

 Systemic-based cases are those where the EEOC believes “corporate wide” hiring or other policies have an illegal discriminatory effect on certain protected classes, even though not intentional.  Even where the employer prevails, the EEOC’s focus on nationwide hiring or disciplinary policies can involve hundreds of thousands of pages of documents and the involvement of experts.  Six and seven-figure legal bills are not uncommon. For more information on the EEOC systemic initiative, check the EEOC Systemic Enforcement page as well as these  Fisher & Phillips EEOC systemic enforcement articles and a recent article providing Criminal record check guidance.  You may also want to visit the EEOC’s Strategic Enforcement Plan.

 Folks … this process is about as burdensome as responding to a class action lawsuit, and the EEOC’s easy ability to expand a single employee EEOC charge to a nationwide focus is frightening.  Even after almost years as a labor lawyer, I am shocked at the lack of limits on the EEOC’s ability to turn a single seemingly routine case into a near-class action.  The case need not be dramatic or loathsome.  Have I adequately conveyed my sense of alarm?  This process troubles me as much as anything I have recently experienced.

 Ironically, the sequestration is expected to increase the EEOC’s focus on systemic cases as the EEOC seeks to most efficiently use declining resources.  A March 12 BNA article concluded that many EEOC offices believe that “where there is smoke with one EEOC charge, there has to be fire in discrimination against a group of employees.”  In other words, the thought process is “let’s consider whether any isolated charge may actually be the indication of a dark corporate wide effort.”  The BNA article describes the concern of some attorneys “that the EEOC has adopted a “quality over quantity approach.”  

 Importantly, “money talks,” and as you can see from the following excerpts from the 2006 EEOC Systemic Task Force Report, the Agency is doing everything it can to “incentivize” Investigators and Supervisors to find systemic cases…

  • Incentives (to EEOC Investigators) . EEOC should create incentives through performance plans and other means to encourage the field to: successfully identify, investigate and litigate systemic cases ….
  • EEOC should address staffing needs to ensure the success of a nationwide systemic program, including creating a number of GS-13 Lead Systemic Investigator and GS-12 Systemic Litigation Analyst positions in the field and filling expert positions within the Office of Research, Information and Planning (ORIP) and Research and Analytic Services (RAS) to support the field’s systemic program….

I think that we can safely assume that opportunities for incentives and promotions will motivate investigators and their bosses.

In addition, the EEOC is taking steps to coordinate between offices and use resources more effectively against national companies, which previously have only had to deal with a single EEOC office’s approach…

  • Districts should develop and submit to headquarters Systemic Plans that specify the steps each district will take to identify and investigate systemic discrimination and that describe how this work will be accomplished.
  • Districts with significant systemic experience should partner with other districts,… the Systemic Plans should ensure a coordinated, national approach to combating systemic discrimination.
  • EEOC should staff systemic lawsuits based on the needs of the case, rather than based on the office where the case arose.  ….
  • Headquarters should support the field’s systemic program through assistance with partnering, coordination, and legal and data analysis.

 How Should an Employer respond?

 Our first concern is that many sophisticated employers consider unfounded EEOC charges to simply be “a cost of doing business,” and do not involve counsel on their response to the EEOC.  Where a case shows the potential or indications that it may become a systemic case or where the EEOC sends a document request seeking   policy documents, it is essential that the employer retain counsel to analyze being provided to the EEOC.  Where counsel is involved only after a “Cause Finding” or well into the investigation, the client may have missed the opportunity to take steps which could limit exposure.  Therefore, a prudent employer will obtain assistance as soon as it receives the tell-tale evidence request.

 My friend and law partner, Hagood Tighe, along with other members of our Columbia, South Carolina office, has been involved with many systemic cases.  Hagood says that when investigators ask questions about the following, these may be an indication that the EEOC may be heading toward an expansion into a systemic investigation:

 

  • Policies or selection criteria to sites beyond the one referenced in the Charge
  • Data involving applicants or positions beyond those specified in the Charge
  • Pre-employment test “validation studies”
  • How the selection criterion is relevant to job performance
  • HR database information

 In anticipation of such claims, Hagood  recommended that multi-location employers consider involving employment counsel on all EEOC charges, or at least when a selection process is implemented.  It is becoming more and more common that a simple response to an EEOC charge leads to a systemic investigation.  Seemingly innocent statements regarding consistent application of policies can lead to such investigations, especially if the policies are those on the EEOC red flag list – such as policies on criminal background checks, credit checks, testing, etc.

 Hagood reminds employers that the EEOC seems to be especially closely focusing on background checks, including criminal record reviews, since it implemented its new approach, as described in a recent article by our Columbia associate, Matt Korn.  Another good article analyzes why and when to seek such data, as does this link.

Posted in background checks/examinations, class actions/systemic investigation, discipline and discharge, EEOC, employer policies, government inspections, litigation | Tagged , , , , , , , , | Leave a comment

Everybody Agrees That We Need Better Wellness Programs? Correct?

Posted on March 27, 2013 by mavity2012

My answer would be that “I’m not sure.”  An amazing number of employers agree that absent improved wellness initiatives, a graying less healthy workforce will break the corporate bank, so to speak.  Likewise, seemingly, we should all be able to agree on a goal of improved employer wellness programs and incentives.

Of course, life is never that simple.  Many employers continue to devote little cash or effort to wellness programs, and frankly, it is a challenge to develop effective wellness initiatives for traditional blue-collar settings.

Nevertheless, we have to make the effort.  read today’s article in ENR Risk Review, “Will the Aging Workforce Suffer More Injuries?”

On the plus side, a wide range of groups, including some in Congress, want to create financial incentives directed at both employers and employees.  I saw this quotation yesterday:

Tom Harkin (D-Iowa), calls for tax credits for businesses that offer workplace wellness programs and tax deductions for the cost of employees’ gym memberships.

And yet, I have seen other groups challenge and want to make it more difficult for employers to provide monetary incentives for wellness efforts because they view such actions as potentially a violation of the ADA, or because it simply offends their view that “everyone” should get the same savings,… which kind of defeats the intent of encouraging healthier lifestyle decisions.

Consider  the recently released EEOC Interpretation Letter below, which deals with Wellness Plans, Incentives and the ADA and GINA (warning, it is bueracrat-speak at its worst).  I have not yet been able to obtain this letter online, but will discuss it based on the copy  published by BNA after obtaining it via a FOIA request (another reason to use BNA).  BNA concludes that,

 “Employers might have to provide reasonable accommodations to employees who are unable because of a disability to comply with health plan wellness provisions that include incentives for certain conduct…”.

he  plan offered a waiver of annual deductible as a reward, for participation, but the EEOC was uncertain whether offering this incentive for a healthier lifestyle was so valuable that its offer rendered the plan no longer “voluntary.” 

The EEOC stated, that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary,”

As to accommodation obligations, the EEOC observed,

“if a wellness program is voluntary and an employer requires participants to meet certain health outcomes or to engage in certain activities in order to remain in the program or to earn rewards, it must provide reasonable accommodations, absent undue hardship, to those individuals who are unable to meet the outcomes or engage in specific activities due to disability.”

The EEOC stated further,

“You specifically mention requiring participants to have a ‘Medication Possession Ratio > 80%’ which identifies the extent to which an individual is taking his or her requirement medication,”

and an employee is unable to meet this requirement because of a disability, EEOC than helpfully pointed out that “the employer would need to provide a reasonable accommodation to allow the individual to participate in the plan and to earn whatever reward is available.”

The BNA article correctly pointed out that,

 in addition, a participant in the program could be lawfully removed from the plan for failure to comply with its requirements if participation in the plan is voluntary and persons whose disabilities cause them to be unable to meet the requirements are reasonably accommodated, as long as the participant “remained eligible to participate in the employer’s standard benefit plan.”

This recent Letter follows a more general 2011 EEOC Letter.  Remember that these letters are for guidance and do not (yet) pronounce official EEOC positions.

Now, back to the real world… read the article in EHS Magazine, The Health Incentive: Employers Encourage Workers to Take Action on Health, which discusses a recent Aon/Hewitt Survey, noting:

 Aon Hewitt, a human-resource company, surveyed nearly 800 large and mid-size U.S. employers representing more than 7 million employees and found that 83 percent offer workers incentives for participating in health-related programs – 79 percent in the form of a reward, 5 percent in the form of consequences and 16 percent using a mix of both rewards and consequences. Employee health actions may include taking a health risk questionnaire (HRQ) or participating in biometric screenings.

Survey highlights include:

  • 56 percent or employers require employees to actively participate in health programs, comply with medications or participate in activities like health coaching. 
  • 24 percent offer incentives for progress toward or attainment of acceptable ranges for biometric measures such as blood pressure, body mass index, blood sugar and cholesterol. More than two-thirds say they are considering this approach in the next 3-5 years.
  • 64 percent of employers offer monetary incentives of between $50 and $500
  • 18 percent offer monetary incentives of more than $500

May I also recommend the aptly titled article, Money Talks When It Comes To Loosing Weight, which reviews a Mayo Clinic study.

BNA also recently provided an excellent article on the Aon Hewitt Study, stating,

Reduced insurance premiums and cash or gift cards were the most common form of rewards used in respondents’ wellness programs, while penalties are exacted through increased premiums, Aon Hewitt spokeswoman Maurissa Kanter.

I hope that these various articles and excerpts assist you in continuing your noble quest to assist employees in developing a healthier lifestyle for them …. and for you.

Posted in ADA, aging workforce, cultural changes, EEOC, employer benefit plans, employer policies, generational differences, incentive plans, wellness, workers comp | Tagged , , , , , , , , , | Leave a comment

Do I Have To Treat Employees Like Kids? Uhh… Sometimes.

Posted on March 25, 2013 by mavity2012

 

 I hope that this Post is of no surprise to anyone, but in my recent quest to review basic aspects of the wonderful world of OSHA, I realized that the question of “do I have to make employees wear PPE” made it all the way to the full OSHRC last year.

 In Custom Built Marine, the Commission strongly reminded us that under Construction standard 1926.102(a)(1) governing eye protection, employers must ensure that employees actually use the eye protection and not simply make the eye protection available.

 The Commission commented that a 1983 OSHRC decision made this point clear, but neither the parties nor the ALJ meaningfully addressed this authority. Instead the Commission engaged in a more generalized analysis that may affect other personal protective equipment (PPE) standards.

 Of course, none of my readers have ever had to worry about employees not wearing safety glasses, hearing protection or foundry chaps.

 Nevertheless,  let’s stroll through the OSHRC’s reminder that employers must take specific steps to comply with PPE standards.

 In Custom Built Marine Construction, Inc., the Compliance Officer observed an employee using a jack hammer on a concrete bulkhead without eye protection. The Compliance Officer claimed that he saw pieces of concrete flying into the air while the employee was operating the jack hammer. OSHA issued a citation under 1926.102(a)(1), which provides that “employees shall be provided with eye and face protection when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.” The employee admitted that he knew that PPE was available on site if he felt that his working conditions were unsafe.  The ALJ vacated the citation, holding that because the standard only required the employer to “furnish” or “make available” such protective equipment, the employer was in compliance with the standard.

 The Commission disagreed, noting that this issue had been addressed 30 years earlier in Clarence M. Jones, (1983). In Clarence M. Jones, the Commission held that 1926.102(a)(1) requires “an employer to ensure the use of eye and face protection.”

 The Commission further stated that this conclusion is clear when 1926.102(a)(1)is read together with the general safety and health provisions of 1926.20 and 21, which provide in  part that “the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.”

 As an important side note, I am surprised that OSHA does not employ 1926.20 and 21 more frequently, which far more than a 5(a)(1) general duty citation, requires construction employers to inspect job sites, provide PPE and develop safety programs even when a specific standard may not be applicable.

 The Commission reversed the ALJ’s decision to vacate the citation and assessed a penalty of $2,400.

 We’ll talk another day about defending against such claims by the increasingly hard to prove “unpreventable employee misconduct defense,” but I will tease you with a link to another decision last year, where one of my partners prevailed with that affirmative defense.

 We’ll also talk about steps that could have blunted OSHA’s prosecution in the case above.

Howard

Posted in construction, discipline and discharge, employer policies, government inspections, OSHA | Tagged , , , , , , | Leave a comment

Why Isn’t The FLSA Minimum Wage $33 An Hour?

Posted on March 25, 2013 by mavity2012

From one of our Fisher & Phillips wage-hour impresarios, John Thompson.

Why Isn’t The FLSA Minimum Wage $33 An Hour?

U.S. Senator Elizabeth Warren (D-MA) recently asked during a Senate committee hearing why the federal Fair Labor Standards Act’s $7.25-per-hour minimum wage has not already increased over time to the level of $22 an hour.  A professor appearing at the hearing opined that a case could be made for a current rate of $33 an hour.

So why isn’t the FLSA minimum wage more than 450% higher than it is today?….

Posted in wage hour, Washington | Tagged , , , , , | Leave a comment

More Negative Developments in State OSHA Plans.

Posted on March 24, 2013 by mavity2012

While non-Californians understandably view the California legal system as more complicated and punitive, until recently, upper leadership and a lack of money made Cal-OSHA more reasonable than its written rules suggested.  However, Fed-OSHA has continued to push State OSHA Plans to conform with its more punitive approach, and that “push,” combined with a different governor, has resulted in more punitive Cal-OSHA approaches.

One obvious example is Cal-OSHA’s misuse of Citation Notice letters, known by their form number as 1BY letters. Most management side attorneys have advised California employers to be quite careful how they respond, if they respond at all. Increasingly, it may be best not respond at all.

In 2010, Assembly Bill 2774 changed many aspects of how Cal/OSHA works. Most of the changes were aimed a making it easier for Cal/OSHA to successfully prove their citations at the Appeals Board. However, the 1BY letter was not conceived as an enforcement tool.  Nevertheless, it was latered into one.

Previously, then-Cal/OSHA Chief Len Welsh, a straightforward and committed civil servant came up with the 1BY letter as a means to foster early and more open dialogue between employers and Cal/OSHA before citations classified as serious were issued. Everyone profited. Cal-OSHA could achieve employer compliance with the use of less of its limited resources, and employers could achieve an acceptable outcome without costly legal expenses. Moreover, the intent was that employers come to recognize that Cal-OSHA could be more of a partner in protecting workers, and not solely a “police officer. Welsh explained that once a citation was issued, it was posted on Fed/OSHA’s Establishment Search page for all to see. Not an insignificant occurrence in this era of competitive bidding and the ever-increasing efforts required to protect an employer’s “brand.”

If the employer has a good reason why a citation should not be issued, or issued with a classification less than Serious, why not get that done before an appeal has to be filed? The concept of the 1BY was received positively by most on the employer’s side, who saw it as a form of early settlement negotiation.

Cal-OSHA’s first version of the 1BY letter was straight-forward: The letter identified the specific standard thought to have been violated, and included the Alleged Violation Description (AVD). The form also had a box to check to alert the employer that Cal-OSHA was considering issuing the citation as Willful Serious.
Shortly after the 1BY process was born, Welsh left Cal-OSHA and the agency’s attitude changed from innovator and conciliator, to viewing the 1BY process as another tool for enforcement.

General Counsel Amy Martin announced on a video cast sponsored by the Cal-OSHA Reporter that the employer’s statements on the 1BY could be used as evidence at hearing, if it seemed to contain admissions against interest. Certainly, she declared, any changes in the employer’s position between the reply and the trial would be pointed to as evidence of untrustworthiness. She also once mentioned fairly harshly that no one pays attention to it.

There also seems to be no uniform approach to the use of the 1BY in Cal-OSHA’s district offices. Admittedly, inconsistency is a problem with both Fed-OSHA and  State Plans in many areas, including the application of the “willful” classification. However, the application of the 1BY process has been even more varied. Some treated the employer’s replies seriously. But other District Managers and compliance officers have encouraged employers not to bother, because they may not even consider the responses. At least one employer reported that their response has even been used to justify increasing classification from Serious to Willful Serious.

Which leads to the latest version of the 1BY form, which includes only the AVD language. Gone is any explanation as to which regulation will be cited. Gone also is the head’s up that the citation might be a Willful. The reason? Apparently Cal-OSHA discovered that the Labor Code doesn’t require them to provide either provision.

So, the concept of dialogue and intelligent pre-citation resolution was thrown out the window and the 1BY is more than ever a trap for the unwary. There will be few, if any occasions to use the 1BY process.

The concept really was innovative as Len conceived it. The closest Fed-OSHA equivalent would have been to use the Closing Conference as a negotiating opportunity, but by the time of the Closing Conference, OSHA’s mind is made up, and at best, any additional information supplied will likely be used to buttress OSHA’s file. While I have occasionally achieved pre-citation Fed-OSHA settlements, usually where bad press could be tolerated, it is difficult to do so.

Posted in Cal-OSHA, government inspections, OSHA, settlement strategies, state osha plans | Tagged , , , , | Leave a comment

OSHA Warning: Don’t Get Caught In a Trap!

Posted on March 22, 2013 by mavity2012

It’s nice to see that more and more employers and their publications are raising the legal and practical concerns associated with reliance on “lagging indicators,” such as recordable injuries to manage and evaluate safety programs. Go to the Blog  of the excellent periodical, HR Professionals Magazine, to review my article/blog on OSHA’s increasing focus on employer safety-related discipline and on safety-incentive programs. Read “OSHA Warning: Don’t Get Caught In a Trap!”

Posted in discipline and discharge, employer benefit plans, employer policies, harassment, incentive plans, OSHA, whistleblower/retaliation | Tagged , , , , | Leave a comment

It Took 12 Years To Decide That’s Not Willful?!

Posted on March 22, 2013 by mavity2012

 

Let’s continue our discussion of employer “Willful” behavior.  OSHA can be inconsistent in its application of the classification, and it is often up to the employer to establish the distinction between “serious” and “willful” behavior during and after an OSHA inspection.

 The U.S. Court of Appeals for the District of Columbia Circuit provided a practical description of the meaning of “Willful” in Dayton Tire v. Secretary of Labor.  D.C. Circuit Court decisions affect Federal OSHA throughout the country because Fed-OSHA appeals eventually end up in D.C.

 The D.C. Court held that to make out a Willful violation, the Secretary of Labor must be able to demonstrate that “the employer was actually aware, at the time of the violative act, that the act was unlawful, or that [the employer] possessed a state of mind such that if it were informed of the [OSHA] standard, it would not care.” 

 The Court stated that “it takes a lot to be plainly indifferent.”  The Court then vacated the penalties assessed against Dayton Tire based on the Secretary’s failure to “cite a single piece of evidence indicating that [the manager] was actually aware . . . that the act was unlawful.”

 The long and winding road to the DC Court decision….

 OSHA initially issued to Dayton Tire 107 Willful violations, 98 of which were for alleged Willful failures to train 98 different Dayton Tire employees to the level of an “authorized employee.”

 Dayton Tire contested the citations, and the Administrative Law Judge (“ALJ”) affirmed the violations, assessing a $518,000 penalty.  Although the ALJ found that Dayton Tire’s actions were “consistent with a good faith belief and effort to comply with the LOTO standard throughout the Oklahoma City plant,” the Judge nevertheless characterized 37 violations as Willful.  The ALJ reasoned that Dayton Tire had knowledge that its parent corporation had previously been cited for similar violations of the LOTO standard.

 Dayton appealed the case to the Occupational Safety & Health Review Commission (OSHRC), which took TWELVE YEARS and then in 2010, smacked down the employer, upholding all of the violation as Willful, and increasing the penalty to approximately $2 million.  Gosh.  Nothing unreasonable about that decision!  The Commission did not base its finding of Willfulness on the parent corporation’s prior violations, but rather, based it on the original finding by Dayton Tire’s first safety manager that only the outside maintenance contractor’s employees were LOTO authorized employees.  The Review Commission found that determination to be “plainly erroneous.”  The OSHRC concluded that when the subsequent safety manager relied on her predecessor’s assessment, she “either knew that her predecessor’s LOTO analysis was incorrect or chose to avoid such knowledge by refusing to conduct her own assessment.”

 After probably pondering why the OSHRC took 12 years to make a decision, the DC Circuit overturned the OSHRC decision, finding that past Commission findings of plain indifference have only been upheld where a company made no effort to address repeated warnings from employees or OSHA that they were in violation of safety standards.  The incidents referenced by the Commission in Dayton Tire case failed to reach that level.  According to the DC Court, the original safety manager’s actions showed that she at least made an attempt to respond to concerns that were raised — “while [she] could have done more, she did not do nothing.”  The Court found that the manager’s “responses evince negligence at most,” which is insufficient for a finding of Willful.

 Don’t Assume that OSHA will consistently follow this definition….

We think that the Court did a fine job of applying the clear intent of the OSHAct, but the underlying decisions in this case under both Republican and Democratic administrations illustrate that OSHA and ALJ’s may not agree.  Start at the beginning of the inspection to show that behavior is not willful, and if you are on a multi-employer site, watch out for your fellow employers.

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

Is that a Willful Violation?

Posted on March 21, 2013 by mavity2012

 

Employers are uncertain about the difference between a “Willful” classification and a “serious” classification of an OSHA citation.  I confess that I sometimes struggle to understand the basis for a particular Area Office or Judge’s decision.

 First, a basic definition from the OSHA Field Operations Manual:

 A willful violation exists under the Act where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.

 This definition seems fairly straightforward, but I’d encourage you to visit  FOM, page 4-28 and review the full discussion of what may constitute a willful violation.

 Since the definition may tend to vary a bit depending on the current make-up of the Occupational Safety & Review Commission, let’s review a recent decision.

In Secretary v. Elliot Construction, the Commission reversed the ALJ’s finding that two violations for overexposure to carbon monoxide (CO) were not willful, and affirmed another willful violation that the ALJ had vacated. Ouch.

 The concrete contractor, used gasoline powered machines to pour and smooth concrete inside a building, which is not an unusual application. The foreman anticipated that CO from the machines’ exhaust and set up fans to ventilate the space. At various times, employees reported feeling ill. The foreman sent these employees outside, but did not stop the work. Then, the employer’s safety consultant happened to visit the work site, and advised that CO overexposure was probably occurring. the supervisor seemed unconcerned, so the consultant  contacted emergency response.  Two employees were diagnosed with CO poisoning.

OSHA cited the employer for willful violations – failure to conduct air monitoring, for exposing employees to CO levels above the PEL, and for the failure to implement administrative and engineering controls.

 The ALJ dismissed the first item, affirmed the violation for overexposure of employees to CO,  but found that the employer did not act willfully.

The Commission reversed on the inspection violation, accepting the Secretary’s argument that 1926.20(b)(2) broadly requires the employer to inspect the workplace for hazards, and in this case, air monitoring was necessary  because air monitoring was the only way to determine whether CO emissions exceeded the PEL.

The Commission also rejected the ALJ’s finding that  the violations for overexposure to CO and the failure to use engineering controls were not willful.

The Commission found that the supervisor’s state of mind was sufficient to impute willfulness to the employer, and the company’s past history with CO exposures and knowledge about monitoring devices precluded a good faith defense.

Note that an individual supervisor, as agent of the employer, committed the contractor’s willful acts.  It was not necessary that a corporate intent be shown.  Just one really bad episode of poor judgment by a supervisor.

Next time, we’ll discuss a bit more complicated set of facts, Dayton Tire.

 

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