PART II – Organizations Making a Difference in Safety and Management: BevCap Session on Avoiding Workplace Harassment.

Dealing with the challenges generated by the #METOO Movement (my Topic at the Conference) while EEOC harassment claims have not yet surged in industries outside of entertainment, media and the political world, the #METOO Movement has permanently altered women and men’s perception of the workplace.

New Attitudes or Previously “Hidden” Attitudes.

This movement or event differs from any previous focus on harassment. Not just the size and ugliness of the events … the #METOO Movement has surfaced and challenged a whole range of attitudes and practices, including the long simmering debate about women being paid less than men in so many settings. The longer-term effects of the #METOO movement will be the legal changes on pay and possibly even the long debated Comparable Pay Law.

I recommend the penetrating observations found in the Harvard Business Review’s MANAGING #METOO:

  • But first they (employers) must understand the problem, and that’s not as easy as it sounds. Sexual harassment is a form of dysfunctional behavior within the workplace — and a chronic phenomenon with a long history.
  • Research indicates that more than 70% of women have experienced it on the job, but many incidents of it go unreported.
  • One reason is that the legal definition of sexual harassment is rarely understood. Further complicating the issue, no consensus has formed around lay definitions of sexual harassment, which differ from the legal definition and have changed over the years.

I consider myself reasonably enlightened but recent events have demonstrated that we must recognize that our individual perceptions may not be entirely accurate.

Omnibus Law efforts – New York example.

  1. Mandatory Sexual Harassment Training and Policies

All employers must adopt a sexual harassment prevention policy to be distributed in writing to employees, and conduct annual sexual harassment prevention training. The bill directs the New York State Department of Labor to work with the New York State Division of Human Rights to develop both a model sexual harassment policy and model training program.  Employers can then choose whether to adopt the models prepared by the state or develop their own, so long as their policies and training meet or exceed the standards contained in the models. This law will take effect October 9, 2018.

The model sexual harassment prevention policy must include the following:

  • a statement prohibiting sexual harassment;
  • examples of prohibited conduct that would constitute sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable local laws;
  • a standard complaint form;
  • the procedure for the timely and confidential investigation of complaints;
  • a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
  • a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
  • Meanwhile, the model sexual harassment prevention training must be interactive and include the following:
  • an explanation of sexual harassment;
  • examples of conduct that would constitute unlawful sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and all available forums for adjudicating complaints.

2.Prohibition of Confidential Settlements

  • Confidentiality language can only be included if that is the complainant’s preference. The complainant must be given a period of 21 days to consider whether to accept confidentiality language, and then has seven days to revoke his or her acceptance. This new law will bestow on employees broad bargaining power in choosing whether or not to keep sexual harassment claims private. This law takes effect on July 11, 2018.
  • The new legislation amends New York’s Civil Practice Law and Rules to ban contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, except where inconsistent with federal law. Any such provision included in a contract will be null and void, but will not impact the enforceability of any other provision in the contract. It is yet to be seen whether and to what extent this provision will be enforceable in light of the Federal Arbitration Act.

3. Other Measures.

  • In addition to the above laws impacting private employers, the new budget law imposes an obligation that bidding entities for state contracts certify that they have implemented a written policy addressing sexual harassment and provide annual sexual harassment training to employees. Additionally, the law requires state employers found responsible for committing sexual harassment to reimburse the state agency or entity for any damages award paid to the plaintiff.
  • Employers may now be held liable for sexual harassment contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action. This provision takes effect immediately.

4. Extension of Sexual Harassment Protections To Nonemployees.

5. Prohibition of Mandatory Arbitration Agreements

The bill prohibits settlement agreements for sexual harassment claims that include nondisclosure provisions, unless that is the complainant’s preference. Specifically, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances,” for a claim for which “the factual foundation… involves sexual harassment.”

The model training must also include information addressing conduct by supervisors and additional responsibilities for supervisory personnel.

Pay Equity – “Equal Pay” claims have been reborn.

  1. The 9th Circuit Court of Appeals ruled on April 9 that employers cannot justify a wage differential between men and women by relying on prior salary, which makes it more difficult for employers to justify pay differentials and defend pay equity claims.
  2. Massachusetts – Last Month, the Massachusetts Attorney General issued guidance regarding the amended Massachusetts Equal Pay Act (MEPA), which is scheduled to take effect on July 1, 2018. That law will prohibit employers from paying employees of a different gender at different rates provided they are doing “comparable work,” and will also bar inquiries about salary

Laws Prohibiting Obtaining Past Pay History (examples).Many states have passed or are in the process of passing laws limiting or prohibiting obtaining or using past pay history at hire. As examples:

  1.  CaliforniaAssembly Bill 168 (Eggman), prohibits public and private employers from seeking or relying upon the salary history of applicants for employment. AB 168 also requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment.  Therefore, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.
  2. Delaware, Massachusetts, and Oregon passed similar laws.
  3. Philadelphia passed an ordinance which was challenged.
  4. New York City adopted an ordinance that will become law on October 31.
  5. A San Francisco ordinance will go into effect on July 1, 2018.

Attacking Nondisclosure Agreements – such agreements are under attack, especially when not associated with the resolution of a lawsuit out of a concern that these agreements have slowed disclosure and response to widespread issues.

  1. Section 13307 of the federal The Tax Cuts and Jobs Act provides that no deduction shall be allowed for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.”
  2. Washington State Bill 5996 prohibits employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement (NDA) preventing them from “disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.”

The law also specifies that such agreements—including nondisclosure agreements that predate the new law—will be void and unenforceable. The law does carve out an exception for confidentiality provisions contained in settlement agreements entered into between employers and employees

The bill also adds a new section to the Washington Law Against Discrimination (WLAD) that specifically prohibits employers from firing or retaliating against employees who disclose sexual harassment or sexual assault allegations.

Mandatory No Harassment Programs and Training.

One cannot discount the barrage of statistics … for various reasons, many employees have not felt comfortable raising harassment and discrimination concerns. Our complaint procedures have not worked as well as we believed, and many employers have not yet created a culture where employees will raise concerns about discrimination, harassment, safety.

One of my focuses is on making No Harassment and No Discrimination policies understandable and relevant to employees and supervisors. What meaningful guidance to we give employees when we recite a No Harassment policy drafted to satisfy legal concerns?

A few suggestions ….

  1. Review your No Harassment and No Discrimination Polices and Policy Statements.
  2. Revise them to include lots of examples and less legalese.
  3. Make your No Bullying policies more robust and because bullying and claims of hostile environment, discrimination and retaliation often flow from bullying – connect the No Harassment and No Discrimination policies to bullying.
  4. Train employees to focus on professionalism and to avoid getting to the point of harassment.
  5. Recognize that not every person can be taught good judgment, but to at least try. Common Sense left town – never assume that anyone innately acts with common sense.
  6. Figure out how to convince employees that you are serious that you want them to report “possible” harassment, discrimination, safety hazards and unethical behavior.

Our Hats are off to these organizations and their safety efforts ….

Georgia Tech and GTRI – the best!

BevCap Management Best Practices Conference.

The Georgia Safety Health and Environmental Conference

Charlotte Regional Safety and Health Conference.

AGC-National Safety Committee meetings (outstanding).

AGC-National Advanced Safety Management Classes.

Alabama Governor’s Safety and Health Conference.

NUCA of the Carolinas Spring Conference.

CAGC Annual Safety and HR Conference.

EHS-Today Safety Leadership Conference (sponsored by FP, ABC and others) (11/6/18).

Kentucky Governors Safety and Health Conference.

Indiana AGC Safety Conferences.

National Safety Council.


Shenandoah Valley SHRM.

Mid Atlantic Construction Safety Conference.

Colorado AGC Safety Council – especially proactive about silica.

Oregon AGC – Columbia Chapter.

TAUC Leadership Conference.

ABC Florida East Coast Chapter.

AGC Georgia Chapter.

AGC San Diego Chapter.


TEXO: The Construction Association.






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Safety Lessons from Organizations Promoting Effective Management and Safety.

I wish that time permitted us to write more often about the good work done by various groups to improve workplace safety and management. Notable examples include AGC –National and numerous state AGC-Chapters, the National Safety Council, State safety summits or “Governors Safety Conferences,” such as those in Georgia, Alabama, Tennessee, Mississippi, Kentucky and Indiana; TAUC, NBWA, American Foundry Society, American Poultry Association, and many others. We could also talk about the work of insurers and affiliated businesses, such as Willis, ACIG and Zurich. Today I’ll do just that ….

BevCap Management Best Practices Conference.

I’ve spoken at BevCap Management LLC’s  Best Practices Conferences for many years, on topics such as Drugs in the Workplace, Common Workplace Safety Problems, Ergonomic challenges, OSHA enforcement, FMLA, effective HR, and avoiding Harassment and Discrimination claims. I try to attend other sessions as possible to learn the current concerns on these beer wholesalers’ minds and solutions being developed.

This year’s subjects illustrate concerns on almost all employers’ lists:

Vehicle Safety – the legal exposure generated by fleets and even individual auto usage dwarfs that of most other workplace safety concerns. About 40% of OSHA’s annual workplace fatalities involve vehicles. Workers Comp claims by drivers, especially those involved in loading or unloading product are high. And of course, a single accident killing a member of the public can in a single stroke destroy a company’s hard-won reputation. Therefore, it’s not surprising that topics included:

  • A sobering presentation by attorney Gregory Gowan on a Plaintiff Attorney’s Perspective of the Liabilities Associated with Distracted Driving.


  • A soup to nuts discussion by attorney Mark Downey on Updating Your Company Driver and Vehicle Policies and the legal issues associated with employee vehicle usage.
  • Rear End Collisions.
  • Strategies Used to Curb Distracted Driving.

Smoking Cessation and Addiction Treatment – Harold C. Urschel III, MD, MMA, Chief Medical Strategist, Enterhealth. Dr. Urschel is the NYT Best Selling Author of Healing the Addicted Brain.

I also spoke some on state law challenges posed by recent new state recreational and medical marijuana laws being interpreted as requiring employers to accommodate employees using Marijuana use – still a small minority. However, Dr. Urschel addressed the more crucial root issue of the rise in addiction problems, especially with regard to heroin and abused prescription meds. There are few more serious and expensive future challenges looming over employers. See our frequent writing about opiates and NYT Author Sam Quinones.

Articles by Dr. Urschel:

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Howard’s Discussions on Wine, Restaurants, and Books – We Need a Break from Politics and Law.

Tonight, we’ll take a break from legal and business writing and just have fun with discussing wine, restaurants, and books.

Guard and Grace.

This restaurant evokes the coveted review of “damn!” Let’s start with our entry into the restaurant … this is a modern steakhouse, but unlike places such as STK, which has a great décor but middling food, Guard and Grace has sterling food and service to live up to its inviting bright setting. Forget the cherished dark woods of traditional steakhouses such as the sainted Bones – which admittedly have facilitated many a deal for me. The setting is bright, open, and welcoming – and somehow it’s not noisy – a must for me. And the guests were young, cool, successful, and basically the opposite of me. In other words, fun to watch.

Those who read my work know that I am too efficient to devote a paragraph to the setting, so that tells you how much I enjoyed the atmosphere. I’d sit at this bar every night and type away on my computer if this place was near me.

The bar staff is outstanding – and consider that I’m spoiled by the bar staff at Atlanta’s Il Giallo and Brooklyn Café, so my praise is not easily earned. The staff coordinates unusually well, with all of them attending to you. At one point, the Wine Muse Kelly Cleary and bartenders Jason and Jacob were educating me on wines, while bartender Alex was working with my son, William on appetizers and the raw bar selections. Incidentally, the Burrata was great and the oysters were solid. I am not an octopus fan, and I do not understand folk’s fascination with tentacle beasties, but this octopus relied on meaty texture and oak grilling – only way I’d eat it.

The bar staff were more knowledgeable about wine than even the “better” bar staff, but what I really liked was their involvement of Kelly Cleary, whose title of Wine Locker Coordinator, is cool – who wouldn’t want this job – but really understates her sommelier knowledge. I have a good cellar but I choose wine based on taste and the recommendations of people whom I trust and who know my tasteI simply am not urbane enough to describe wine in the proper terminology despite having been to the wine regions in Europe, South Africa, California and even the Middle East. So I listed wines that I am currently enjoying – Prisoner, Caymus, Turley, etc.

Kelly and her bar staff partners were in a Spanish mood and showed me multiple Spanish choices and finally pushed me to try Clio,”a 2015 Spanish vintage of Monastrell grapes (and 30% cab) from El Nido winery. The price was reasonable for a restaurant wine and the taste bold, jammy and delightful – at least to me – and wine is about what the individual likes. I am wowed by this wine. To me, it punches above its weight – great wine for the price.

Based on my taste, the group also suggested the Alto Moncayo, or the Brega by Bodegas Breca. For my second round, I drank the Black Tears by Tapiz, a 2012 Malbec which has none of the blandness of many Malbecs. It’s a bit more mature. Kelly described it as darker, deeper and more complex than most Malbecs – there is substance and content – its “pensive,” which to her meant complexity and layers – not just one note – Syrah-like. I’m a North Georgia redneck and preferred Clio, but this Malbec is damned good.

The steak lives up to its rep, but great steak is great steak. On the other hand, the sides are different from the usual steakhouse sides – I’m a connoisseur of Gnocchi, and it was some of the best I’ve had – and these guys are wizards at roasting carrots.

This is the longest review I’ve written but these guys were incredibly hospitable to me and my sense is that they do this with all customers. Hats off to their management.

As Arnold said, I’ll be back … probably this week while in Denver.


I’ve got quite a bit to say about books. No surprise.

Go Like Hell: Ford, Ferrari, and Their Battle for Speed and Glory at Le Mans.

Go Like Hell is the rare book that may appeal to everyone. The author, A.J. Baime is a solid historian whose other works include The Arsenal of Democracy. Baime has a deep affection for Detroit and for writing about the interplay of industry and politics.

What distinguishes Baime’s work is that he writes books about history that you cannot put down. He seizes upon real stories that are so colorful and off the wall that a fiction writer would reject as incredible. Put simply, fun reads!

I recently attended the amazing car show and auction, Concours d’ Elegance at Amelia Island, and learned more about the battle between European and US race cars in the 60’s. Did you know that Henry Ford II, Henry Ford’s grandson, was one of the most brilliant American industrialists ever? Did you know that he was the one who first recognized the post WW II U.S. population shifts from stalwart reliable cars to “fast cars?” Did you know about the greatest corporate battle of all time between Ford and GM for supremacy? You’ll never again see its like. And most of all, did you know when Henry Ford II, “the Deuce,” decided to spend whatever was necessary to defeat Ferrari at the then most important race in the world, the grueling 24 hour Le Mans. You do not have to be a car person to enjoy this book.


I was so impressed by Baime’s Go Like Hell that I immediately read The Arsenal of Democracy. You can tell that Baime deeply loves Detroit and its pre-80s grandeur. Prior to its stunning meltdown, Detroit was the third largest city in America, an un-paralleled economic titan, and even the U.S.’s choice of cities’ to repeatedly bid for the Olympics in the 50s and 60s. Read Once in a Great City: A Detroit Story.

My son and I are history buffs. We’ve travelled to Europe, Africa, Turkey and most recently a exploration of the WW II and Communist era Poland and Berlin. Arsenal explains in easily understandable exciting terms how the U.S. went from an isolationist economy devastated by the depression to a Country that produced tens of thousands of planes and tanks. ANY reasonable analysis of the 1941 U.S. would have concluded that we were doomed. You hold your breath as you read about the production battle that arguably won the war. And you’ll detest Henry Ford and respect Edsel Ford when you complete the book. The story resembles a Game of Thrones in the industrial era.

I strongly recommend this book but with caveats. The book is a great thriller with supernatural aspects, and anyone who loves movies and Hollywood history will enjoy the setting and shout outs about golden age actors. The book also bluntly describes the egos and brutal behavior of Hollywood agents, producers, and other power players. However, I am a 58 year old guy and I was a bit put off by the graphic wild sexuality, but the sex is not gratuitous – it was essential to establish the debauchery and soul stealing setting. It’s a good read, but be prepared.

That’s all for tonight. I hope that  you enjoyed my peculiar tastes … and a break from business and legal discussion.

Book Stores Par Excellence.

My son, William and I feasted on Denver-based Tattered Covers Book Stores today when prevented front hiking by freezing rain and snow (William and I have paid our dues hiking in such weather and defaulted to exploring Denver. We encountered Tattered Covers independent book stores which rank up there with Portland’s Powells and LA’s The Last Book Store. Stores like Tattered Covers are a destination and therefore are not rendered obsolete by Amazon’s admitted convenience. We especially loved the hundreds of notes by staffers recommending books and the website’s Very Impressive Books (VIB).  It’s worth following these guys just to see the evolving VIB list. I bought so many books that I had to buy an extra suitcase. These purchases were my act of rebellion against Jeff Bezos and Amazon. I appreciate the ease of buying from Amazon but book stores are a part of culture – they must survive. Tattered Covers has expanded to four locations and shows the survivability of this concept.


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Howard’s Weekly Wrap Up – March 25 – Part I (Practical Safety Tips, New CA/WA Laws, and More.

I’ve been crazy busy lately, so actually this Wrap Up would be better titled “Past Three or Four Week Wrap Up.” Last Fall saw a frustrating and still unexplained spike in workplace deaths. OSHA has six months in which h to issue citations, so the last three weeks have involved five OSHA Informal Conferences and travel to California, Pennsylvania, Florida and parts in between. Throw in a number of recent multiple fatality cases, and my writing had to take a break. So hang on for a multipart effort to catch up.

Practical Observations.

When I started these updates, I was eager to share day-to-day observations we at FP observed in our cases and from employers in the news. Occasionally I’ll share observations and lessons about bad or what you may cheerfully view as ‘dumb employers.” However, I generally focus on good employers because I am blessed with solid clients and know more about industry leader companies than bad players … and it vital to remember that good employers who focus on safety and good HR still see breakdowns on individual site and plant level. Never … ever … assume that your employees or supervisors will not make mistakes ….

  • Safety Minutes – I’ve previously mentioned the value of properly utilized Safety Minutes. Many employers require foremen and supervisors to start pre-work meetings with a Safety Minute; usually a topic provided by the safety manager. More enlightened employers will ask executives to open meetings with a safety minute. Employers who impress the heck out of me, have CEOs who actually are passionate about opening every meeting with a safety minutes … and not because their labor lawyer told them it was a good idea. I rarely reference a client by name, but this time I’ll do so, Scott Anderson has humbled me by faithfully demanding a safety minute before every meeting … and the excellent Boilermakers Local __ assured me that “he’s for real … he does this at every meeting … it’s not just for show.” Another CEO, Randy Hall, upon hearing me talk about Scott, felt vindicated for working toward the same goal. Best of all these safety minutes focus on safety lessons outside work, which of course also translate to increased safety awareness at work.

My personal action point? My client and Practice Group members had best expect me to become more faithful in using Safety Minutes.

The point is not to get you to use Safety Minutes, but to “want” to use them in order to model safety to the rest of the company. Employees and frontline supervision have an ability to sense when their leadership is serious about safety.

  • Documentation – I know that employers are tired of attorneys harping about documentation, but employers so often train employees on safety requirements, or have reason to reasonably rely on past experience, but the employer does not document the on-the-job site-specific training or the training at past jobs or employers. Or the employer does not document how they determined that they needed respirators and the respirators used are appropriate. Similarly, no matter how detailed the form, employers wrestle with getting frontline supervisors to thoughtfully complete these daily pre-work forms, briefings, or JSAs. Forms with numerous blocks to check-offs get pencil whipped, but even if an employer requires supervisors to write daily tasks, hazards, and steps, the employer must stay on top of their efforts to ensure consistency. I could restate this message every week and it would never become redundant …. Practice Pointer? Periodically review construction daily JSAs or pre-work meeting forms or weekly plant safety walk-arounds. Look to see if every day or week’s form looks the same. Work to move away from checklists and get the supervisors to fill in daily details.


  • Embedded Work – We lose a great deal of sleep concerned for contractors who perform embedded work at a customer’s site, such as at outages or annual shutdowns. Although the courts and the OSHRC have inadequately defined the diligence required of contractors working on a customer’s site, their duties “should be” as follows:

(. . . it is impossible for a particular employer to anticipate all the hazards which others may create as the work progresses, or to constantly inspect the entire jobsite to detect violations by others”). Gulf States, Inc., 7 O.S.H. (BNA) ¶ 2152 ALJ Nov. 30, 1979) quoting Grossman Steel & Aluminum Corp., 4 OSH (BNA) ¶ 1185 (O.S.H.R.C. May 12, 1976).

To establish constructive knowledge of the hazard. “The test is whether the Secretary established that [Jacobs] could have discovered the violative condition through the exercise of reasonable diligence.” Jacobs Field Services of N. Am., Inc., & Its Successors, Respondent, 2015 O.S.H. Dec. (CCH) ¶ 33445 (2015)

The reality is that OSHA Area and Regional Offices will not engage in this nuanced an analysis. OSHA WILL TAKE THE POSITION THAT THE EXPOSING EMPLOYER MUST ASSESS AND DETERMINE THE HAZARDS AND TAKE APPROPRIATE STEPS … PERIOD. OSHA will not consider the fact that no contractor, no matter how sophisticated, cannot have the same awareness of hazards and understanding of a complex refinery, power plant or chemical plant as the customer/owner. Accordingly, a contractor must take and document their reasonable steps taken to evaluate and confirm site employer confined space entry, LOTO, and hazard assessments. OSHA does not care that the contractor may be required to adhere to the site/customer’s procedures and assessments. OSHA does not care that the contractor may be unaware of a single valve failure from 300 valves. OSHA does not care that no other industry employer has found this hazard in this setting. They will site you as if the OSHAct did not say that OSHA has the burden to prove that the employer knew of the hazard or “should have with the exercise of reasonable diligence.’

My Action Points? Recognize that no employer can rely on another employer to meet their safety obligations with regard to their employees. Then, document the reasons why you found the site’s assessments and required procedures to be correct. If you have doubts, push the customer a bit. More often than not, a good customer’s assessments and procedures may be correct and with their superior knowledge, the customer should know. Document your reasons and steps, and if challenged, do not be reluctant to challenge OSHA’s refusal to recognize that an employer’s obligation is NOT to be omniscient, but to exercise due diligence.


Legal Updates – Part I.

  • Where to start …? Let’s go by sheer volume, which means that reliably liberal Washington State gets the prize for three new employment laws:


March 15, 2018 by Benjamin Ebbink

As we reported in January, after nearly six years of discussion and debate, the Cal/OSHA Standards Board (Board) approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.”  The final regulation was recently approved by the Office of Administrative Law and will be effective July 1, 2018.

More »

Keep in mind that an essential point to this regulatory development is that this regulatory effort is part of a nationwide effort by UNITE-HERE and other unions to use safety as a wedge between employers and employees and to organize them … and it works.

Wine, Movies, Books, Podcasts, Restaurants and More.

  • The Prisoner (2016). I bought a case of this stunning Red and I’m already ordering two more cases for my own consumption and gifts. This wine is an incredible value ($35 – $50 retail) for a complex taste. Thanks to Jeff Trump at Sandy Springs’ Brooklyn Café for getting me to revisit The Prisoner. Jeff has come close to converting me from Old World to California Reds.

From Jeff: The Prisoner is a modern-day wine success story, launched by Orin Swift founder Dave Phinney in 2000. Phinney crafted a contemporary version of the California field blend—Zinfandel with portions of Cabernet Sauvignon, Syrah, Petite Syrah and Charbono.  The Prisoner was inspired by the “mixed blacks” first made by the Italian immigrants who originally settled in Napa Valley. The Prisoner is now the most recognized Napa Valley red blend, leading the resurgence of interesting blends by incorporating Zinfandel with the unlikely mix of Cabernet Sauvignon, Petite Syrah, Syrah, and Charbono.

  • The Frothy Monkey. The name alone of this Chattanooga/Nashville hangout warrants praise,but the Chattanooga location at the restored Chattanooga Choo Choo site hit a home run on funky/easygoing atmosphere, great staff, and creative brunch food. Also excellent coffee, hot tea, and a sticky roll to kill for. Sunday Brunch was a casual and plain damned fun outing.


LA in general, and Santa Monica in particular boasts countless great brunch spots. Regrettably, some restaurants with views rely on the gorgeous views and let quality and innovation slide as to the food. Not so this delightful find on top of the Huntley Hotel (a street behind the outstanding Fairmont Miramar). The food is fresh and innovative with fun California and Mexican twists, service is impeccable, and the view toward Malibu is as advertised … stunning.

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Howard’s Wrap Up – March 3, 2017 – Part 1.

I’ve missed a few weeks due to travel, work, and a need to focus on various legal updates and the horrific Ft. Lauderdale Shooting. I’ll prepare several posts over the next few days to catch up. The Wrap Ups posted on the site in particular, and to some extent on the FP Workplace Safety Blog reflect my interests as Editor of the FP Worksite Safety Blog, but you do yourself a disservice if you don’t regularly skim through other FP communications pieces such as the California Employers Blog, our monthly FP Labor Letter, periodic Hospitality Newsletters, Labor Alerts, and other pieces. Therefore, I’m going to showcase recent FP Articles and Alerts which are relevant to the audiences that follows FP’s Workplace Safety Blog and the sites.

ABA OSHA Section Midwinter Meetings.

This annual meeting is essential for government, management and union-side attorneys who seriously focus on OSHA, MSHA and related legal and practical issues associated with workplace safety. Its neutral ground where the different groups exchange information and maintain professional relationships which facilitate efficient, professional and often respectful case handling, which benefits everyone. I have forged friendships with outstanding attorneys at all of my competitors and with government and union side professionals with whom I otherwise disagree. The content was affected by the embarrassing lack of an OSHA head after almost 14 months, and the absence of important government side representatives who had to attend the vital OSHPA conference (Note to OSHPA – please avoid scheduling your meeting at the same time as the ABA meeting – we miss you.).

We have less to report this year than from some meetings. Hopefully intrepid Bloomberg BNA OSHA Reporter, Bruce Rolfsen, will generate some useful updates.

FP Workplace Safety Group Attendees.

I will, with paternal pride, showcase our six FP Workplace Safety Practice Group attendees (we lost two at the last moment to conflicts). I’d put our crew up against any other attorneys for creativity, efficiency, doggedness, practicality, and congeniality.IIMG_0124

In the attached photo in front of the Northern Hemisphere’s largest fig tree, you’ll see in the center, my Co-Practice Leader and friend, former OSHRC member and Assistant Secretary of Labor, Ed Foulke, Appropriately, I’m at the end on the left, sweating after a hike in the Santa Monica mountains. Starting on the left is David Klass, a former Virginia prosecutor and member of our Charlotte team. Next to him is Charlotte-based Travis Vance, a genuine rising OSHA/MSHA superstar and my regular coconspirator on creative lawyering and expanded client communications. In front of Ed is Holly Manci, a sterling senior associate with the Charlotte team, and more than the equal of Travis and me at storytelling. Behind her is Todd Logsdon Todd has a degree in safety engineering, worked 10 years in manufacturing, and is a bona fide expert on Bourbon.

I hosted a group private lesson on cocktail making and cocktail food at the remarkably creative aptly named Hip Cooks in West LA. Sadly, we joked all evening about proper PPE, avoiding ergonomic injuries and other things that only safety nerds discuss. We also included California attorneys Fred Walters and Lisa Prince of Walters Prince, and outstanding Cal-OSHA boutique with which we often work. Keep up with them on their Blog. Fred proved to be wizard at mixed drinks. I also included my son, his girlfriend and other young members of the Film Industry – they actually give one hope for the often unfairly maligned Millennials. Impressive young professionals.IMG_7569

People hire lawyers, not law firms, and clients deserve to know about the professionals with whom they trust with their business. The makeup of our group helps explain why an entrepreneurial-type like me has happily stayed 34 years at FP as it expanded from 36 attorneys to 32 offices.

I hope that this bit of fluff has added some background about FP attorneys with whom you deal.

Cal-OSHA Updates.

While Fed-OSHA is slowed by the absence of leadership, Cal-OSHA has experienced no such problem. Please read the always excellent insider observations of Sacramento FP attorney Benjamin Ebbink about recent California legislative activity, including Cal-OSHA – Your Comprehensive Guide to 2018 Proposed California Legislation.

Workplace safety-related bills include the following:

  • Assembly Bill 1789 (Salas) – Valley Fever – Requires the Cal/OSHA Standards Board to adopt a standard for state public works projects to prevent and control Valley Fever.
  • Assembly Bill 2799 (Jones-Sawyer) – Cannabis – Requires an applicant for a state cannabis license to employ one supervisor and one employee who have completed a Cal/OSHA 30-hour general industry course.
  • Assembly Bill 2963 (Kalra) – Blood Lead Levels – Requires the California Department of Public Health to report to Cal/OSHA any instance where a worker’s blood lead level is at or above a specified amount (to be determined).
  • Assembly Bill 3031 (Quirk) – Power Tools: Dust – Requires an employer whose employees are involved in the use of power tools or other equipment for cutting, grinding, coring or drilling of concrete or masonry materials to provide specified training to employees to reduce health hazards associated with dust.The relatively young California Marijuana Law expressly protects employer rights to demand that employees report to work free from the presence of marijuana, so pay attention to _AB 2069. Requiring an employer to demand proof of impairment of a marijuana imposes a near-impossible burden on an employers, and will endanger coworkers and the public:AB 2069 would amend the Fair Employment and Housing Act (FEHA) to prohibit employment discrimination against individuals based on their status as a medical marijuana cardholder or because of a positive drug test for cannabis.  The legislation specifies that it does not prohibit an employer from disciplining an employee “who is impaired on the property or premises of the place of employment or during the hours of employment.”  However, as current technology does not establish “impairment,” despite validated studies showing often non obvious impairment, this provision will lead to significant litigation

California legalized medical marijuana in the 1990s, and in 2016 authorized the recreational use of marijuana. In its 2008 decision in Ross v. RagingWire Telecommunications, the California Supreme Court ruled that employers are not required to accommodate an employee’s use of medical marijuana.  However, that all may change with the introduction of Assembly Bill 2069 by Assemblyman Rob Bonta.

Recent News Items Pertinent to the Safety Professional (and interested Management).

  1. Are Standing Desks Effective?

I don’t know about you, but the concept of “standing desks” makes sense to me. A number of FP attorneys swear by the concept. Accordingly, check out the following articles: Are they actually effective? What’s your experience?

     2. Will the Netflix Piece “Seeing Allred” Increase Sex Harassment Claims.


Attorney and early advocate of challenging sex harassment Gloria Allred has done some good, but some people view her as a media seeking person who championed questionable claims and lowered the professional discourse. Nevertheless, she is still a force to be reckoned with and employers should consider the effects of her promotion toward increasing the number of sex harassment claims. Read the article below about the Netflix Documentary about her:

(CNN)Nobody will confuse “Seeing Allred” with a hard-hitting expose; rather, this Netflix documentary unabashedly celebrates publicity-savvy attorney/advocate Gloria Allred, shedding some interesting light on her career, even if it’s all flattering.

The irony is that filmmakers Sophie Sartain and Roberta Grossman began their look at Allred’s hard-charging brand of lawyering — with its emphasis on media appearances and never meeting a bank of cameras she wouldn’t rush to greet — during the allegations against Bill Cosby in 2014. Read more at LINK.

Outside of certain industries, we have not seen a tidal wave of EEOC charges, but one cannot deny that there will be meaningful changes in worker attitudes, both good and bad. Hopefully, employers will get ahead of the changes and improve work culture.


There is too little space to talk about recent movies and product through Netflix and Amazon Prime that I’ve liked, so I’ll just mention how impressed I was with this year’s Academy Award Nominees for Short Films – Live. I watched them Saturday night at Santa Monica’s Monica Film Center Movie Theater –, which shows solid independent films (that sadly we seldom see in Atlanta theaters). I was moved by the winner “The Silent Child,” an advocacy film for deaf children, whose writer and supporting actor learned sign language and became an advocate after her father was rendered deaf by chemotherapy. To feel good, read this Article about the young deaf star or this Belfast article. They were all good, but partly because of my African travel, I was also impressed by Watu Wote/All of Us and its balanced portrayal of Muslim/Christian conflicts in Kenya. I’ve never watched the Short Films before ….


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Howard’s Weekly Round Up – February 10

Legal Observations Based on This Week’s News.

If you are involved in safety or risk management, especially in construction, you recognize that struck-by accidents are almost always among the top three causes of employee deaths. What you may not appreciate is that most struck-by deaths do not occur on road projects where a motorist hits a worker. Employees routinely lose their lives when a front end loader, Bobcat, dump truck, tractor-trailer backing to a dock, or forklift in a warehouse hits an employee. Employers should analyze their workplace for potential hazards such as:

  • Areas near docks where employees may be walking or working near trailers;
  • Dock areas and aisles and racks where forklifts and other PITs are operating;
  • Construction worksites with constant dump truck traffic, many of which are independent contractors or owner operators of varying quality;
  • Construction sites, especially where there are limited lay out yards, such as in major cities, where employees are exposed to operating equipment.
  • Areas on manufacturing lines or around monorails, conveyors and robots.

This concern was borne out this week by the following article about Struck-by Incidents leading work-related deaths in North Carolina.

OSHA may cite employers in and outside buildings under a number of Standards, such as 1910.176(a) where employees are allegedly exposed to hazards of forklift operation in warehouse or manufacturing areas. We often challenge these citations because there is no proof of actual hazards. Employer precautions include marked pedestrian walkways, signage, barriers and training. Robot-related citations often focus on Lock Out or are cited under 5(a)(1) if there is a genuinely recognized hazard and approach in the specific injury.

It’s more challenging to develop protective methods for employees on foot in Ready Mix or construction sites or walking or working near docks or where tractor trailers are operating in a yard. Marked walkways may not be possible. Reflective vests are often at least one step, but probably not the only one. Struck bys can also arise in the manufacturing sector such as wear monorail ls and conveyors move components through an assembly plant.

Here is a Link to a 65 page Focus 4 Instructors Manual on Construction Struck by Hazards. Link to OSHA Poultry Plant wide Struck by Page. OSHA Construction E Tool. OSHA page on Unloading and Loading. 2015 FP Post on Struck bys.

Falls Remain a Problem. A recent headline that NIOSH found that nearly half of all construction deaths were Fall-related did not surprise anyone, but does again reinforce the need to continue emphasizing fall protection, and not just tying off, but also scaffolds, tethering tools, and other related issues.

Surprising Crane-related Death. No one knows many details but the industry-leading Manitowoc Cranes lost employees at an incident at a Pennsylvania site’s test deck for a crane. My point is that if a solid, safety-conscious industry leader such as Manitowoc has such a tragic accident, NO employer using cranes should become complacent. This sad accident is a reason to have a Stand-down on Cranes.

Cal/OSHA Approves Hotel Housekeeper Safety Rules. Cal-OSHA voted 6–0 on Thursday, Jan. 18 to enact Section 3345, Hotel Housekeeping Musculoskeletal Injury Prevention. UNITE-HERE has pushed this measure as part of its ongoing efforts to unionize hospitality workers by emphasizing alleged safety hazards. Their intent is demonstrated by Pamela Vossenas, Director of Worker Safety and Health for Unite Here: “Overwhelmingly women, immigrants, and people of color, housekeepers face high rates of workplace injury. The state of California has recognized the seriousness of the dangers housekeepers face and took an important step to protect these workers.”

Under the new standard, hotels will be required to identify and reduce injury risks for workers, including providing proper tools such as long-handled mops or devices to help make beds. Hotel housekeepers will receive training on injury risks and have the right to suggest solutions to those risks, according to the new rules. While parts of the Rule may be appropriate and hazards are presented, employers would be wise to remember the underlying goals. Safety conscious employers should address hazards before the Rule takes effect.

Comments by Benjamin Ebbink, who runs FP’s Sacramento office, writes for our California Employer’s Blog, and tweets excellent California legal/legislative news

Sexual Harassment and Workplace Safety and Health. Both nationally and at the state level, there is a lot of legislative action around sexual harassment and employment. Historically, little focus has been placed on viewing this issue as a workplace safety issue.  Fed-OSHA has traditionally been reluctant to address workplace violence via a 5(a)(1) approach without a more specific standard.  5(a)(1) citations require OSHA to prove that sexual harassment is a “recognized hazard” under the Fed-OSHA 5(a)(1) General Duty Clause.  However, the debate may change based on the recent revelations of conduct constituting assault and battery and sexual assault.

Cal-OSHA is working on a General Industry Workplace Violence Standard to expand from its Healthcare workplace standard. The Cal-OSHA proposal would require all employers to develop a workplace violence prevention plan that identifies and mitigates hazards.  Would an employee’s sexual harassment claims (particularly claims that would rise to the level of sexual assault) be deemed a “recognized hazard” that would warrant employer activity and trigger citation exposure?

There has also been a flurry of activity around local ordinances and (at least in California) proposed statewide laws to require hotels to supply hotel workers with “panic buttons” to raise the alarm in situations involving sexual harassment or violence.  That approach smacks of “personal protective equipment, PPE.”

Automation/Robots. The increasing discussion of automation, robots, and the “future of work” warrants attention.  The epicenter of the discussion seems to be out here in San Francisco and the Silicon Valley. A recent Bloomberg-BNA article addressed efforts by labor groups (in particular the Teamsters) to use local regulation and permitting to address the potential jobs and unionization.  The article noted: “Unions typically criticize automation as detrimental to fair wages and stable jobs, but the Teamsters’ initiative in California reveals a nuanced attitude in favor toward the future of organized labor.”

It is also interesting to consider the potential impact of automation on the construction industry, which may not seem like a candidate for automation at first blush due to the labor-intensive nature of the industry.  A recent article in the Economist laments low productivity in the construction industry, and mentions how new technology (such as digital “building information modeling”) may improve efficiency.  An article from the AGC magazine Constructor is a great read.  It primarily discusses the use of drones, which are useful in aerial photography, surveying, data collection, and more.  But the article also discusses robotics: “New developments allow for robotic brick laying, painting and pipe crawling.  Morris foresees the day when robotics will paint buildings or lay flooring when other trades leave for the day.”  The article points out that robots do not necessarily replace people, but working with robots requires different skills, which may necessitate retraining current employees.  The article even discusses 3D concrete printing!

One issue that may drive innovation in construction is the increasing and already serious worker shortage. We may see a push toward innovation and technology as a means to fill this gap, much as we have seen in fast food in response to Fair Wage efforts.


The new Netflix Altered Carbon series is superb and loyal to Richard K. Morgan’s excellent book. Great SciFi story, excellent acting, pacing and CGI. Loved it. IMDB details.

J.K. Simmons is great playing two versions of himself in different dimensions in Counterpart. Fast moving story. Good watch.100% on Rotten Tomatos so far


Weller Antique bourbon – very nice.




Posted in attitude/culture, beer, bourbon, scotch and wine, Cal-OSHA, general duty 5(a) citations, harassment, hospitality, movies, state osha plans, Uncategorized, union organizing | Tagged , , , , , , | Leave a comment

Howard’s Weekly Wrap Up – February 4, 2018

Mercifully, last week was not filled with big legal developments, so we’ll visit a few practical observations on safety compliance and managing OSHA Inspections.

Because safety professionals in particular, and managers in general, need to know more than their narrow discipline, we’ll continue talking about other employment law developments which affect safety and other business areas.


The Week’s Labor, Employment Law and OSHA Legal Developments.


Practical Observations.

  1. Flu and Wellness – As if the news has not been bad enough, the seriousness of this year’s Flu and flu-like illnesses was brought home to me this week when I ended up in the hospital with pneumonia or pneumonia-like virus. I was surprised that as I talked to clients this week, several of them volunteered a similar experience with recurrent attacks of “flu” or “sinus infections,” rounds of medicine and then something worse. For one take, read this article Flu symptoms similar to adenovirus: What is adenovirus? 
  2. We’ve already pasted previous articles about responding to flu in the workplace, and the key points remain the same – employers, perhaps through their Wellness Programs, should emphasize the flu vaccine, washing hands, getting sleep, and staying home when sick. Add to those points, the need to educate employees about the seriousness and variations of this year’s Flu season. Good article from EHS Today, How to Keep the Flu from Breaking Out in Your Plant.
  3. Signing OSHA Witness Statements – our Workplace Safety Practice Group emphasizes forthright and professional dealings with OSHA and other government agencies, but that does not mean that employers should fail to exercise their legal rights in responding to and managing an OSHA or other government investigation. It’s the duty of a government investigator such as an OSHA Compliance Officer, to build a file to support the elements required to make out the violations that the CO believes occurred. It is not the employer’s job to help make out the elements of a violation, especially when the CO may be wrong. Section VII.A. of the OSHA Field Operations Manual (FOM) notes the purpose of Witness Statements and that signature is voluntary:

Interview statements of employees or other individuals shall be obtained to adequately document a potential violation.

Statements shall normally be in writing and the individual shall be encouraged to sign and date the statement.

The short time period in which OSHA must complete its investigation and the understaffed realities of OSHA mean that citations issued, upon further more detailed analysis, may not satisfy the elements necessary to sustain a citation before a Judge. Without exceptions, when employers contest and go through the litigation process, additional facts come out and they often help the employer.

Section VII.B. of OSHA’s FOM expressly notes that statements are useful where problems may later occur:

CSHOs shall obtain written statements when:

  • There is an actual or potential controversy as to any material facts concerning a violation;
  • A conflict or difference among employee statements as to the facts arises;
  • There is a potential willful or repeated violation; and
  • In accident investigations, when attempting to determine if potential violations existed at the time of the accident.

Therefore, an employer has to ask  why it should encourage supervisory employees to sign a Statement prepared by the investigator. Investigators generally try to accurately set out the witness’ statement but they are trying to establish a case – statements are never completely neutral. Even more importantly, witnesses often sign statements that they later realize were inaccurate or that they did not thoughtfully consider. For the same reasons, management-side attorneys often take only sparse strictly factual statements or do not get a signed statement early in an investigation.

Once the statement is in writing and signed – accurate or not – it will be used against the employer. So, while we wholeheartedly agree with an employer’s desire to fully cooperate, we generally recommend against supervisory employees signing a statement. Unlike non-supervisory employees, the supervisor can bind the company. They are your agent.

Non-supervisory employees are a different matter – it’s the employee’s decision and an employer should not interfere in any way with an employee signing a statement. Nothing more effectively destroys trust between an employer and investigator than even an appearance of discouraging employees from cooperating in an investigation. The sensitivity of managing hourly employee interviews is one reason why employers may later regret failure to consult with counsel.


Mentorship – This podcast shares a fascinating story of an immigrant’s success, and the importance of his mentors. We talk mentorship but often are not purposeful in our efforts. The Model Health Show TMHS 265: Creating Fit Bodies, Successful Mentorship and the Truth about Discipline – With Bedros Keuilian

Wellness and Healthcare – One doesn’t expect to learn about advances in stem cell therapy from a podcast including Mel Gibson, but this episode from the colorful Jo Rogan Experience podcast, with Dr. Neil Riordan provides a matter of fact update on efforts which may soon influence health and the burgeoning costs of taking care of an aging and less healthy workforce.

Input from Readers.

Lisa McGlynn is an outstanding attorney in our Tampa FP office and a regular speaker in the Tampa Bay and Central Florida areas, with a special interest in issues posed by medical marijuana. Lisa is also active in Fisher Phillips’ WILC, Women’s Initiative and Leadership Council efforts both internally and with clients and other attorneys. Please check out the WILC events hosted by our various offices. She also blogs regularly on our Gig Employer Blog. Lisa is smart and good on her feet. She recently sent me the following observations:

One recent interesting development of interest to me is that Vermont became the 9th state to legalize recreational use marijuana and the 1st state to do so via the legislature.  The stark difference between the states and the federal government on this issue continues to be confusing to employers.Although also not new, like many others, I related to Hillbilly Elegy. Many of our families’ histories may be a bit more “hillbilly” than elite, so it was of particular interest to me and those with whom we deal.

Although it is not a new book, I recently read that may be of interest to business readers is the Gift of Fear by Gavin de Becker. The book encourages readers to trust their instincts about situations and individuals, as well as giving specific helpful advice (such as the fact that liars often use too many details).  It covers many different scenarios (stalking, dating violence, etc.) but it has a whole chapter specifically on workplace violence thatwas fascinating.  In fact, whenever I have given a talk on workplace violence issues since reading the book, I mention it to the audience because I really think it is worth a read.


The Alienist – TNT’s new series shows promise. While not necessary, one may enjoy the show more if they have read Caleb Carr’s excellent book, _. The first episode seemed a bit poorly edited and did not have the big picture-feel we have come to expect from the great new series starting with Game of Thrones. However, the show found its pace in the second episode with solid performances and an engaging plot. However, what wowed me was the extraordinary recreation of the Guilded Age New York City through CGI and attention to detail in sets and costumes. Wowed me.

Britannia – This joint effort with Britain’s Sky Atlantic . and Amazon Prime is a bold and sometimes hallucinogenic effort to capture the mysticism and gritty details of the second Roman conquest of Britannia and its fierce Druid worshipping natives. The effort is rather unique and interestingly, some recent archaeological finds may overshadow the show. The acting is excellent and it’s a damned unusual effort. Warning – like GOT, no actor is safe, so don’t get too attached.


Posted in books and articles, government inspections, management and leadership, OSHA, podcasts/thought leaders, Uncategorized, wellness, workplace violence | Tagged , , , , , , , | Leave a comment