Cussing Out Your Employee May Get You Sued By… OSHA??

Posted on February 12, 2013 by mavity2012

 

Hopefully you are aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 21 Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group. If not, check out the News Room on OSHA’s Whistleblower page.

OSHA’s news release states:
U.S. Department of Labor has filed a lawsuit in the U.S. District Court against Duane Thomas Marine Construction LLC and owner Duane Thomas for terminating an employee who reported workplace violence, in violation of Section 11(c) of the OSHAct.

Seems fairly standard. OSHA asserts that an employer fired an employee for complaining about unsafe work conditions. It’s a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in the current environment?
However, as you read on, it transpires that the complained of hazard was the owner!
• The employee alleged that, on numerous occasions between Dec. 9, 2009, and Feb. 25, 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.

• The employee, who worked directly for Thomas, reported to him that he was creating hostile conditions. On Feb. 25, 2011, the employee filed a timely whistleblower complaint with OSHA alleging discrimination by Thomas for having reported the conditions to him.

• On March 18, 2011, Thomas received notification of the complaint filing. On March 23, 2011, Thomas had computer passwords changed in order to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s complaint.

And we’re not just talking reinstatement, OSHA seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and to bar the employer against future violations of the OSH Act.

Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, individually
Civil Action File Number 2:13-cv-76-FTM-99-DNF).
Wow….
Ok,… my usual caveat. I do not personally know the facts. The employer may have screwed up, behaved badly and given the complainant the ability to make out a viable claim. Or, the Complainant may have made up and exaggerated the whole thing. While I have yet to see an employee lawsuit that was completely accurate, I do have a high respect for the Atlanta Regional Solicitors’ office, who would be handling the case, so there must be at least some pretty bad facts.

Lessons and Action Points?
1. This atmosphere may or may not have presented a valid safety hazard, but guess what? Under 11©, the violation is the act of terminating the employee for complaining about a safety concern. The concern does not have to be valid (there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern).

2. For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger… and that’s a potential violation.

3. Or… the boss could have indeed cursed the employee, made sexual innuendo and threatened the guy. Maybe it was a safety hazard. Maybe it was not an unsafe situation. But, if the boss indeed did the stuff alleged, than he succeeded in providing me with three opportunities in one week to Blog about how foolish behavior gets a company sued (same-sex harassment and plain old vile racial comments for the other two entries).

4. We need to simply eliminate from our vocabulary the two phrases:
“Boys will be boys,”
And
“You had to be there.”
The problem is that lawyers and Uncle Sam will also be there if one’s conduct is foolish enough.
6. I am reasonably confident that my readers will not dog-cuss their employees, albeit slightly less confident than I was one week ago, but this unusual law suit indicates that supervisors had better think twice before going off on employees.
7. Finally, employers really must effectively train employees and supervisors to behave professionally regardless of the setting,… and train supervisors to understand the many splendored behaviors which may be protected as whistle blowing.
My next four years are going to be busy.

Howard

Posted in cultural changes, EEOC, generational differences, government inspections, management and leadership, NLRB, OSHA, whistleblower/retaliation, workplace violence | Tagged , , , , , | Leave a comment

Why Would Employees Tease About Nooses In 2013?

Posted on February 12, 2013 by mavity2012

I was surprised and disappointed when I read about a punitive damages award against a north Carolina employer who allegedly tolerated employees referring to an African-American coworker as a “coon” and offering him a hangman’s noose. It’s 2013, not 1960.

It’s bad enough when one has to defend against fabricated allegations about nooses and calling someone a “coon,” let alone when it apparently in fact happened. Such a situation is a nightmare for an employer, and to state the obvious, should never have occurred.

Those of you who follow me can already predict my next words . . . “never say that it couldn’t happen to you.” The conduct described in this case is reprehensible. However, I cannot help but wonder, did this behavior start somewhat innocently and escalate to something this terrible? Was this a decent company asleep at the wheel and not a throwback to a place found in the recent movie, Django Unchained. I don’t know.

Here are excerpts from the EEOC’s Press Release:

According to the EEOC’s lawsuit, Gill and Floyd worked as truck drivers for the company. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility’s general manager, who was also his supervisor; the company’s dispatcher; several mechanics; and other truck drivers, all of whom are white. The comments and slurs included “n—–r,” “monkey” and “boy.” Gill testified that on one occasion he was approached by a co-worker with a noose and was told, “This is for you. Do you want to hang from the family tree?” Gill further testified that he was asked by white employees if he wanted to be the “coon” in their “coon hunt.”

Floyd testified that he also was subjected to repeated derogatory racial comments and slurs by the company’s general manager and white employees. Floyd testified that when he was hired in 2005, he was the only African-American working at the company. Floyd said the company’s general manager told him that he was the company’s “token black.” Floyd testified that on another occasion the general manager told him, “Don’t find a noose with your name on it,” and talked about having some of his “friends” visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company’s dispatcher and general manager and Floyd complained to an owner of Widenhouse, but both men testified that the harassment continued.

Action Points

1. Absolutely nothing will get the EEOC’s attention faster than allegations of nooses, KKK markings or use of words like “coon.”

2. The EEOC is actively looking for such cases to litigate so as to “send messages” to discourage bad behavior. They may not be too picky about their fact-checking, so if you receive an EEOC charge, even if the claim is patently frivolous, call counsel.

3. The EEOC is especially interested in cases where they believe that the complained of behavior suggests systemic discrimination, which may broaden into a class action or company wide scrutiny.

4. Stop bad behavior before it gets so bad. Everyone expresses outrage at the allegations in this type of case. However, what kind of culture allowed things to get so bad?

5. Ask yourself: “Where was HR/Upper Management?” Did the Company take seriously its Complaint, No-Discrimination and No Harassment policies? Did they regularly train employees and supervisors . . . or, just pay lip service to the idea?

6. Now, ask these same questions about each of your sites.

7. Annually train supervisors about effective discipline and discharge. Many supervisors come up through the ranks and do not know how to deal with such conduct.

8.  do not solely focus on Non Discrimination and No Harassment obligations – as I discussed in my recent Same-Sex Harassment Blog, train employees and demand “professionalism.”

8. ALWAYS PROMPTLY INVESTIGATE EVEN SEEMINGLY MINOR CLAIMS AND RESPOND TO THE CLAIMANT.

9. Finally, lawsuits “walk into your workplace on two feet.” I am not focusing on legitimate claims. I am talking about fabricated or frivolous claims. There seems to be a self-selection process where the employees with the bogus discrimination claims file suits, and individuals with genuine grievances, simply get another job. Neither outcome is good. Therefore, in addition to maintaining a professional workplace where such behavior doesn’t occur, recognize the type of hire who may use such claims a means of retaliation for some grievance or who always assumes that any adverse action is due to discriminatory intent; not one’s own performance.

Posted in cultural changes, discipline and discharge, EEOC, government inspections, harassment, managing legal matters | Tagged , , , , , | 1 Comment

Protecting Employees During AND After Winter Storms

Posted on February 8, 2013 by mavity2012

Our Portland, Maine office NEVER closes, so when I saw the internal announcement  that even that stolid crew was fleeing the storm, I knew it was bad.

I am traveling on business through Sunday and do not have the opportunity for much creative Blogging, so I have pasted below the substance of a Fisher & Phillips 2010 Labor Alert I prepared about protecting employees after the storm.  I have updated the links and hope that it is helpful.  See also OSHA’s fine Winter Storms page.  The page has a list of hazards to review… assuming of course that you have power.

Before the power goes out, check OSHA’s Cold Stress page describing signs of hypothermia and frostbite and how to avoid this serious condition.  Please see the movie, Christmas Story for guidance on the dangers of touching your tongue to a frozen flag pole.  The CDC guide to surviving harsh weather is also useful.  Finally, as you huddle in warmth due to your generator, while your neighbors freeze, be wary of carbon monoxide.

Once the snow melts and your clean-up involves flood like conditions, see OSHA’s discussions on responding to natural disasters.

The Storm Cometh

In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.

Falls— read OSHA’s Alert on Cleaning Snow from Roofs.  Employers with flat roofs may send contractors or employees on their flat roof to remove accumulated snow before the roof collapses. Unfortunately, this may be a non-routine task for employees, and they may not be aware of applicable fall protection requirements, which are even more important during and after winter storms. In addition, many buildings have skylights whose covers will not meet OSHA’s requirements or they lack guard rails, and employees often fall through these skylights as they unknowingly step on the covers buried under snow. Also, do not neglect OSHA requirements for ladder safety, and the use of man lifts, scissor lifts and buckets.

Electrocutions–we all appreciate the diligent service of the utilities and contractors who labor around the clock to repair fallen lines and downed poles and transformers. However, those contractors must still adhere to the detailed OSHA requirements for electric distribution and construction, as well as ensure that adequate employees accompany each truck. Now is not the time to send out inadequately trained employees, cut corners on briefings and instructions, or neglect training for non-routine tasks. Generator use presents special issues, as does electric backfeed.

Personal Protection Equipment (PPE)–even in emergency situations, employees must perform a Job Safety Analysis (JSA) to evaluate the PPE needed and train employees accordingly. This evaluation and training must be documented (certified) as set out in 1910.132(d). Be aware of what PPE must be provided at no cost to  employees. Under OSHA regulations, employers are required to pay for most personal protective equipment (PPE), but ordinary clothing, skin creams or other items, used solely for protection from the weather (i.e., winter coats, jackets, gloves, , rubber boots, hats, rain coats) are not required to be paid for by the employer. On a practical level, do not overlook footwear; a special focus of OSHA.

Hazard Communication–employers must ensure that employees are adequately trained before exposing them to new chemical hazards, and should ensure that they provide training and necessary PPE for using de-icers and other chemicals.

Equipment Operation–employees must be evaluated and trained to operate most powered equipment, and this duty generally includes when previously trained employees are assigned to new or different equipment. This process can be done simply and efficiently in emergency situations, but may not be neglected. Be especially careful in assigning employees to use chain saws, chippers and comparable equipment.

Roadside Protection/Struck-by’s–not only road construction workers but all workers who may work or operate vehicles on roadsides or construction sites have increasingly faced hazards from being struck by automobiles or run over by dump trucks or equipment whose blind spots prevented the operators from seeing the worker. Employers must be aware of OSHA’s different requirements for telecommunications workers, electric distribution, and general construction for warnings, as well as requirements under 1926.20 and 21 to evaluate a site and determine means to avoid hazards. Employers operating bucket trucks, vans, and even delivery vehicles should ensure they have prepared for roadside hazards.

Exhaustion and Other Health-Related Issues–tired employees make bad judgments and are the first to be injured. Even in an emergency situation, monitor your employees for exhaustion, stress, exposure and other physical problems, including existing physical conditions exacerbated by unusual exertions. Frostbite occurs when skin tissue actually freezes. It normally occurs when the temperature is below 30° Fbut wind chill effect can result in frostbite occurring above freezing. Hypothermia occurs when body temperature falls to a level where normal muscular and cerebral functions are impaired. Trench foot is caused by long, continuous exposure to a wet, cold environment or actual immersion in water. Ensure the use of layers of warm clothing and gear, water, hot beverages and food, and frequent breaks. See OSHA’s cold weather instructions .

Federal Motor Carrier Safety Concerns–if drivers may have to exceed hours worked limitations either to handle the snow fall or to pick up trash, deliver fuel, or undertake other necessary work, you must seek the proper local, state, or federal exemption.

Wage-Hour and Independent Contractor Considerations–while not strictly a safety issue, ensure that even during an emergency and when electronic timekeeping systems may be unavailable, that employees, including those working from home or unusual places, record and are paid for all hours worked, including overtime if so required. Ensure that temporary employees are properly classified and paid, as well as trained.

Much of this is common sense; however, winter storms, and catastrophic events such as  Super Storm Sandy, Hurricane Katrina show the necessity of developing plans in advance which contemplate far more than fire and evacuations. Clean up may well be the most dangerous stage.

If you need help with any question on OSHA’s requirement for providing your employees with the appropriate personal protective equipment (PPE) or what PPE OSHA requires employers to pay for, please contact the Fisher & Phillips Workplace Safety and Catastrophe Management Practice Group.

 

Posted in emergency response, employer benefit plans, employer policies, OSHA, workers comp | Tagged , , , | Leave a comment

More Safety-Driven Attacks on Retailers

Posted on February 7, 2013 by mavity2012

Read the press on allegations that contractors for a major retailer locked employees in during cleaning and committed other safety violations.  I have no idea as to the validity of the claims against the contractors.  I do know that Target is a top-notch company with no tolerance for unsafe behavior.  I have also seen the endless safety-related attacks on Wal-Mart, Hyatt and others which really seemed more about harassment by third parties than genuine safety concerns.  Thus, while I would not make light of these safety allegations, I also give them limited credence.

I have three Lessons for you; especially those of you in retail and hospitality settings, where you are especially vulnerable to third-party actions and attacks designed to harm the Company Brand.

1.     AS I RECENTLY (AGAIN) BLOGGED, THIRD-PARTIES OF ALL SORTS (NOT JUST UNIONS!) ARE INCREASINGLY USING SAFETY AS A MEANS TO HARM REPUTATIONS AND PUT PRESSURE ON EMPLOYERS.

2.     HOSPITALITY, FOOD SERVICE AND RETAIL, FOR OBVIOUS REASONS, HAVE EXPERIENCED LESS SERIOUS WORKPLACE INJURIES AND DEATHS OR ATTENTION FROM OSHA.  THAT DOES NOT MEAN THAT THESE SETTINGS DO NOT PRESENT SERIOUS OSHA AND SAFETY COMPLIANCE ISSUES. 

3.    OSHA CAN AND WILL SITE PROPERTY STORES FOR OSHA VIOLATIONS OF ITS CONTRACTORS AND THEY CAN REALLY EMBARRASS YOU, SO BECOME INVOLVED IN MORE DETAILED PRE-QUALIFICATION AND OVERSIGHT.

Posted in concerted protected activity, employer policies, government inspections, hospitality, OSHA, union organizing, workers comp | Tagged , , , , , , | Leave a comment

Victories Like These Put Employers Out Of Business

Posted on February 7, 2013 by mavity2012

Definition of a Pyrrhic Victory: “a victory at such a great cost that another such victory will lead to defeat.”

Lawyers are justly proud when they win a difficult discrimination or harassment case. However, after a couple of hundred thousand dollars in legal fees, disruption at work, and harm to reputation, an employer may decide that a few more similar “victories” could shut them down.

Therefore, as every CEO knows . . . the best lawsuit win is to avoid an EEOC charge or lawsuit in the first place.

Lawyer-blogger Eric Meyer recently posted a witty analysis of a court decision finding that an atmosphere of moronic and foul behavior would not alone establish same-sex harassment.  I want to talk a bit further about the lessons from this decision.

The U.S. District Court concluded:

The court agrees with the EEOC that Mike’s and Painter’s language crossed the line of social acceptability, even in an all male work environment. But, this court is unwilling to assist in the creation of a general rule that will expose all employers to Title VII suits like this one. The mission of EEOC is an important one, but it does not include the cleaning out of all boorish slobs in the workplace. Bad facts sometimes make bad law, but it will require action by Congress to take Title VII over the great divide that now exists between bad language and same-sex harassment . . . . A public policy against offensive language, if constitutional, would make the courts into world policemen.

Great! I agree with the Court.

But, let’s be clear . . . the crap going on in this workplace was unacceptable . . . . this behavior didn’t even fit into the “boys will be boys” category.

There was a culture of horseplay and off-color badgering in the all-male warehouse where [Plaintiff] Doe worked. Not only would the language used by many employees shock a bishop in his robe, but it would have been unpleasant and offensive to any person of tender sensibilities.

***
Doe says that in late 2004 or early 2005 this warehouse banter rose to an intolerable level….According to Doe, in 2005, Mike first referred to him as a “faggot,” and made similar comments almost every day up until 2007,,, Doe says that Mike’s comments included: “come here, fag,” “hey homo,” “look who’s here, d**k s**ker,” and “why does your breath always smell like a**?” … According to Doe, Painter made similar comments….Doe alleges that Painter regularly and routinely used expressions like: “faggot,” “queer,” “homo,” “d**k s**ker, “fairy,” “a** breath,” and go behind the tank and do what [you] do to other men.” … Such nasty talk, in and of itself, does not prove that the people who engage in it, and who aim it at others, actually believe, or have any reason to believe, that their listeners are actually homosexual or have homosexual propensities. The expression “ass breath” has no homosexual connotation. It sounds more like a comment on someone’s halitosis.
* * *
Doe was not the only person with whom this word game was played. Doe does not dispute this fact…Doe is 5’10” and weighs between 190 and 220 pounds. He has tattoos on his arms. He, as well as other male employees, wore earrings. Doe was married and had children. Doe did not carry himself like a woman or act in a manner that could even remotely be described as feminine. Doe testified in his deposition that he was “just as much of a man as anyone else” and that he gave this impression to everyone, including his co-workers. Mike and Tipton both testified that Doe did not look or carry himself in any way that would suggest femininity. Doe even bragged about his way with women. He gave no one any reason to doubt his manhood. He did nothing and said nothing to suggest that he was homosexual.”

It’s easy to say that this behavior could never happen in your workplace … but could it? What had the employer done to prevent this behavior.
The Fifth Circuit Court of Appeals made similar conclusions in EEOC v. Boh Brothers Construction L.L.C. (July 27, 2012) after allegedly similar conduct occurred in a construction workplace:
(Supervisor) would call (Employee) “faggot” and “princess” and would approach him from behind and stimulate having sexual intercourse while (Employee) bent over to perform job duties.(Supervisor) allegedly exposed himself to (Employee) numerous times. There is, however, no evidence that either man was homosexual….
However, obtaining this decision probably cost hundreds of thousands of dollars in fees, and even after the Fifth Circuit threw out the lower court’s decision, articles still continued to trash this respected company. I wonder if the complained of employees and supervisors still work there?

Action Points?
1. Don’t assume that it cannot happen to your business.
2. Men calling each other “gay” and acting like idiots is not okay just because they aren’t really harassing each other over sex.
3. I worked for years in my father’s warehouses, rigging and machine shops. I settled some disputes with my fists. But it is not the 70’s and the 80’s. Employers will get sued.
4. Even in the roughest work setting, do more than post a “No Harassment” policy. Train supervisors and make sure employees understand that even if they pump out septic tanks for a living, they had better act “professionally.”
5. Try to strike a balance, It’s the real world, but none of us think that the behavior described above is okay. Things didn’t become that way overnight. These businesses are probably good companies, but what could they have done to prevent this behavior?
6. The bottom line is that common sense is not common. We cannot focus simply on instructions “to not discriminate against or harass workers.” We have to make employees understand that the goal is not to get as close as possible to unacceptable behavior without tipping over into unlawful harassment or discrimination. Academic as it sounds, we have to train and expect all personnel to use that not-so common sense and to behave professionally.

Posted in cultural changes, discipline and discharge, EEOC, government inspections, harassment | Tagged , , , , , , , | Leave a comment

Kudos to the Top Workplaces In America Winners!

Posted on January 31, 2013 by mavity2012

Check out the Top Workplaces In America List.  There are admittedly numerous national and local lists of “Best Places to Work,” but for various reasons I find the Workforce Dynamics process to produce more accurate results than many other efforts.  I know, and in some cases, represent some of these companies.  They earned their place on the list through purposeful efforts to guarantee employees good treatment, involvement, and communications… often in Innovative ways.

I can also tell you that some of these companies lead the lists of “Companies Sued Over Employment Claims Less Than Other Members of Their Industry.”

I am especially proud of recurrent winner, Children’s Healthcare of Atlanta, and RaceTrac Petroleum… two Atlanta companies in vastly different industries (pediatric healthcare vs. convenience stores!).  Obviously they have something in common.

Wonder if there is a connection?  I also believe that these employers spent quite a bit of money and time to attain these work cultures, and I also suspect that a hard analysis of savings in legal fees probably alone justify the efforts.  Just a thought….

Posted in cultural changes, employer policies, management and leadership, wellness | Tagged , , , , , , , | Leave a comment

Are You Required to record the Flu On OSHA 300 Logs?

Posted on January 30, 2013 by mavity2012

Normally,… no.

The general rule under 1910.5(b)(2)(viii) is:

Not if the  illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).

However,… during the 2009 H1N1 Pandemic, OSHA issued the following enforcement guidance:

Injury/Illness Records. CSHOs must review the employer’s injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure(s) to patients with suspected or confirmed 2009 H1N1 influenza.

a. For purposes of OSHA injury and illness recordkeeping, illnesses due to the 2009 H1N1 influenza is not considered a common cold or seasonal flu. The work-relatedness exception for the common cold or flu at 29 CFR 1904.5(b)(2)(viii) does not apply to these cases.

Employers are responsible for recording cases of 2009 H1N1 illness if all of the following requirements are met:

(1) the case is a confirmed case of 2009 H1N1 illness as defined by CDC;

(2) the case is work-related as defined by 1904.5; and

(3) the case involves one or more of the recording criteria set forth in 1904.7 (e.g., medical treatment, days away from work).

Let’s see how this year’s very challenging Flu season progresses, and how OSHA responds.

Check my early January Blog on the Flu.

Posted in aging workforce, employer policies, government inspections, OSHA, workers comp | Tagged | Leave a comment

Worst Case Scenario – National Claims and a Painful Ergonomic Settlement

Posted on January 30, 2013 by mavity2012

This is a sobering Blog.  There are legitimate workplace safety concerns involving ergonomic issues in many industries, but how would you like to be on the receiving end of the attacks described below?  Let’ discuss the most recent development in a multi-year attack on a respected hospitality business. 

Pasted below is an excerpt from a UNITE-HERE website announcement of  a major hotel chain’s settlement of one the many OSHA ergonomic complaints filed against its properties by employees associated with UNITE-HERE’s “Hyatt Hurts!”  group. 

According to the Union, the property must take the following steps:
• Conduct a “job hazard analysis” using ergonomic principles to evaluate housekeeper tasks for unsafe or unhealthy exposures related to musculoskeletal disorders;
• Establish a “Housekeeping Committee” to discuss and make recommendations related to housekeeper safety; The Committee will include at least 8 employees, half of whom must be non-management housekeepers chosen by their co-workers;
• Provide housekeeper safety training programs on injury reporting and correct use of ergonomic interventions;
• Ensure availability of bed-tucking and long-handled tools and modify current housekeeping carts;
• Explore the feasibility of reducing the difficulty and number of bed-making tucks, and present findings to the government.
Bedmaking tucks are associated with increased mattress lifts, awkward postures and finger and wrists sprains.

UNITE-HERE has waged this near-war against Hyatt for several years.  According to Hyatt, the effort is part of a brutal strategy to organize non-union properties or to bring pressure on unionized properties for contract and staffing concessions.

First, UNITE-HERE obtained Injury and Illness data for properties (300 Logs or comparable materials), involved researchers, and then simultaneously complained to Federal-OSHA and individual State and Federal-OSHA offices.  The group  generated a barrage of press attacks, political pressure, and alliances with third-party groups. The Union and related groups heavily focused on housekeeper safety issues and the fact that so many of the affected employees were Latino or of other races and nationalities. Below is an excerpt describing the chain’s so called bad habits (could similar claims be “claimed” on another employer unfortunate enough to be so targeted? There may always be some issues, but is this fair, accurate or reasonable? Chilling thoughts…):

According to excerpts from the Union’s website, housekeepers have “crushing work loads.”  The website continues:

• Work speed-up. Some housekeepers clean up to 30 rooms in an 8-hour shift, leaving only 15 minutes to clean a room. This requires rushing that can lead to serious injury and even permanent disability.
• Even the federal government thinks there’s a problem. OSHA recently issued a company wide letter to the chain warning it of the hazards its housekeepers face on the job. This is a first for the hotel industry.
• And the experts agree. In a study published in the American Journal of Industrial Medicine examining a total of 50 hotel properties from 5 different hotel companies, Hyatt housekeepers had the highest injury rate of all housekeepers studied when compared by hotel company.
• Citations issued nationwide. OSHA or its state counterparts have issued 18 health and safety citations against Hyatt at 11 hotels and 3 citations against one of its housekeeping subcontractors with over $100,000 in proposed penalties.
• Adding insult to injuries. It took the lead in lobbying against legislation in California that would make housekeeping work safer.

Federal OSHA took the rare step of issuing a National Hazard Alert about these alleged ergonomic and other safety concerns. Hyatt responded with an articulate public defense. Some bloggers, congressional representatives and others have been highly critical of the attacks on the hospitality chain.

Federal-OSHA is wary of pursuing an ergonomic standard and has been reluctant in all but a few industries to pursue ergonomic citations under the easily challenged 5(a)(1) General Duty Clause process. UNITE-HERE, on the other hand, has provided a blunt example of how OSHA, a union, or any third-party organization could pursue ergonomic claims as an end in themselves, or as a form of the increasing corporate attacks we have witnessed since the Occupy Wall Street movement.

As I have explained in various articles, all employers, but especially hospitality employers, should review their work practices and safety compliance, as well as policies and procedures related to maintaining a satisfied non-union or union workforce. Focus also on policies related to electronic communications and to property control; issues which are especially challenging for retail, hospitality and food service employers. As you know, the NLRB has aggressively attacked many employer policies (although due the recent “recess appointment decision,” some of those decisions may be thrown out).

Restaurants are an especially appealing target, although they present unique challenges to a union bent on organizing them. The SEIU has been trying to develop effective organizing efforts against restaurants for a number of years. 2012 saw an all-out campaign against fast food restaurant workers in New York. Hospitality employers use of contingent workers has also come under attack by the AFL-CIO and its affiliates.

Read my other articles for more concrete steps, including responses to the special challenges faced by hospitality, restaurants, retail and other employment sectors. At a minimum:

1. Review your 300 Logs and other data and work to address patterns of injuries, including ergonomic related claims;

2. Review and revise policies relating to professionalism, electronic communications, and property access;

3. Review and revise safety incentive plans in light of OSHA’s aggressive current attacks.

4. Focus even more on developing and maintaining a workforce that does not feel the need o listen to third-party pitches.

5. Correct all safety hazards and potential OSHA violations; especially including the “low hanging fruit”-type items with which restaurants, hotels and retail employers must deal.

6. Consider when you last were visited, received a complaint or even thought about OSHA… you probably need to train properties about how to handle a OSHA complaint or inspection.

Few employers outside of the hospitality industry have followed these efforts, but having seen them respond to retail employers and employers in visible positions or whom deal with the Federal government, they greatly concern me.

Howard

Posted in aging workforce, concerted protected activity, cultural changes, employer policies, government inspections, hospitality, incentive plans, OSHA, retail, social media, union organizing, unions, wellness, workers comp | Tagged , , , , , , , , , , , , , , , | 1 Comment

Don’t Forget to Post That OSHA 300A Summary By This Friday, February 1!

Posted on January 28, 2013 by mavity2012

Don’t Forget to Post That OSHA 300A Summary By This Friday, February 1!

It always amazes me that such an admittedly dry subject creates so much interest.

Today, we held the first of two Firm webinars today on the nuts and bolts of OSHA Injury & Illness Recordkeeping, and had about 800 attendees. Same last year. I suspect that the reason that we always fill up these sessions is that the OSHA Recordkeeping Standard is complex and counter-intuitive. Moreover, the process may be dry and an everyday kind of thing… but the consequences of errors or high rates are great. You may have read my recent Blogs or articles or elsewhere pondered how a high injury rate can cost you a bid with governmental or private customers. It is imperative that in addition to building a safety process that addresses leading indicators, you also ensure that your recordkeeping is accurate. My partner, Ed Foulke and I regularly encounter more “over” recording than under-recording.

I’ll follow up on a few points that have generated quite a few questions this year. As usual, I have linked to regulations and explanatory materials.

1. If you are not exempt from the recordkeeping provisions (and you are probably not) you must post the 300A this Friday, February 1, and keep it up through April. Check partial exemptions for 10 or fewer employees or for certain industries.

2. The 300 A must be signed by the highest ranking executive at the site.

3. There are many differences between the Workers Compensation recordkeeping process and definitions. Make sure that your record keepers know the differences.

4. Temporary employees you supervise typically go on your 300.

Question 31-1. How is the term “supervised” in section 1904.31 defined for the purpose of determining whether the host employer must record the work-related injuries and illnesses of employees obtained from a temporary help service?

The host employer must record the recordable injuries and illnesses of employees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervision occurs when “in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.”

5. As a related and very important additional point – you are also generally responsible to ensure that those temps have received site-specific training, any required audiometric or respiratory testing, PPE, etc. You may contract this responsibility to the provider, but the responsibility under the OSHAct remains with the supervising employer.

6. Sorry. Even if you experience no recordable incidents. You must maintain and post a log.

7. In addition to focusing on OSHA Recordkeeping and the extreme emphasis by many customers and owners on these numbers in considering bids, also recognize the potentially huge (negative) effect on your EMR (Experience Modification Rate) by the new NCCI Split Point Formula. This could be a double whammy for you; especially if you are construction.

8. I know that I sound like a broken record, at least for those of you who remember record albums, but you also need to review your Safety Incentive Programs and move away from a reliance on OSHA injury and illness rates as a means of tracking the success off your safety program, and as the subjective of your financial incentives.

9. The OSHA Recordkeeping NEP may have slunk off into the shadows, but OSHA remains vigorously committed to addressing what it believes is widespread intentional and unintentional efforts by employers to discourage employee injury reporting. Likewise, although a recent excellent decision found that OSHA could not cite for recordkeeping errors occurring more than six months before the inspection, you should still audit and correct any errors in 300 Logs as required by the standard.

10. Employers remain painfully unaware that employees, former employees, their counsel and their “designated representative” may obtain their own 301 Injury Report AND 300 logs. Need I emphasize how much mischief a plaintiff lawyer, irritated union or other third-party might do with such information? Remember the nationwide OSHA ergonomic complaints filed against one hotel chain? Those complaints started by the third-party using current and former employees as their stalking horse to obtain information. Ouch….

11. Finally, even if exempt from OSHA’s 300 Log requirements, you are still required to notify OSHA within 8 hours of any fatality or hospitalization of three or more employees. AND… some state OSHA Plans, such as Cal-OSHA, Kentucky-OSHA, Alaska, Utah, Washington and Oregon have slightly different requirements.

For more information, head to OSHA’s Recordkeeping Page or to our recent Labor Alert or past Recordkeeping webinars archived at our website.

Howard

Posted in government inspections, incentive plans, OSHA, whistleblower/retaliation | Tagged , , , , , , , | Leave a comment

Do Real Leaders Pass the Buck?

Posted on January 27, 2013 by mavity2012

About 300 comments have been pasted on the Harvard Business Review (HBR) Linked in site response to this recent question. Check them out. While many are repetitive and simply restate what we already know, others offer sharp insight or provide interesting links.  I find that the greatest value of such discussions is that these posts remind us of how we “should” be leading.  I will not venture into the debate about whether leaders are born or developed, but I do believe that we have to continually remind ourselves of how to lead, as well as to repeatedly develop leadership, management and HR skills in frontline supervision.  I am a fan of repetition and reminder.

Several posts linked to articles about Servant Leadership, which I always enjoy.  I would enjoy hearing comments about how the concept of Servant Leadership fits with the drive and tough decision making required of successful executives.

Anyone want to comment on how to lead and to not “pass the buck?”

Posted in aging workforce, cultural changes, generational differences, management and leadership | Tagged , , , , , , | Leave a comment