Howard Mavity

Yep. It’s time for another Post having nothing to do with employment law, President Trump, and dire things. Folks seemed to enjoy my last escapist post … and I received quite a few comments and, even better, suggested other restaurants and wine and book stores.

10 Essential Reds.

Jeff Trump of the Brooklyn Café recently sent me a list of 10 Essential Reds he recommended for a person with my tastes. I was impressed and have pasted the list below:

As to Reds, Mike Johnston and Bob Thornton recently turned me onto a Cab blend, which really impressed me: Pahlmeyer 2007

Whites.

I am not a white drinker, but I wish that I had written down the magnificent white that the Thorntons served from Peter Michaels Winery, but I’ll investigate their whites.

I am currently having a serious romance with the former Orin Swift effort, The Prisoner Wine Company’s Prisoner blend and Saluda Zinfandel. Good luck finding them. I buy them by the case when I can do so. I recently attended a Prisoner tasting at Sandy Springs’ incomparable Italian restaurant, Il Giallo. I was smitten with The Prisoner Wine Company’s white wines, The Snitch and Blindfold.

Outstanding Recent Dinner.

One of the best brokers that I’ve encountered, Evan Georgiou of the The Embleton Curtis Quackenbush Group at Merrill Lynch invited us to a dinner, wine tasting and cooking demonstration by Chef Linton of Restaurant Eugene. Restaurant Eugene is always in the top three or four restaurants in any list of Atlanta’s best restaurants.

Chef Linton first performed a cooking demonstration preparing a simple Risotto and spouting an amazing variety of quotable lines.

I almost never recommend any of the hordes of brokers with whom I’ve dealt, but this group has honorably assisted my mother’s affairs – which are more substantial than my investments – even as she declined. This group includes savvy professionals who have not become so jaded as to lose their focus on individual service. They are good and I especially like Evan. They distinguish themselves from the pack.

An Amazing Independent Book Store.

I’ve already tweeted and talked some about Denver’s Tattered Cover Book Store. https://www.tatteredcover.com/ There are several locations but I prefer the historic Lodo location at 1628 16th Street, near Union Station, set in a restored 1890s building that looks, smells and feels like a bookstore. It also has more appealing places to sit, read and sip than the Colfax location. The best thing about this location is the hundreds of Staff Recommendations placed on bookshelves through the store. The main location on 2526 East Colfax Avenue is larger but those of the Union Station location overshadow the quality of staff reviews and comments.

I bought numerous books off of the Tattered Book Covers’ website VIB section – Very Impressive Books, and I will henceforth monitor the recommendations. The Staff Picks section impressed me less but was still quite good. I also recommend the TC Weekly Bestsellers.

Macallan 18 Year Scotch.

Only Sultans and Russian Plutocrats Need a Scotch Better than Macallan 18 Year Single Malt. The Macallan 12 is wonderful, but the 18 is superb. Some more experienced Scotch drinkers extolled the 15 year, but I’ve not tasted it. https://us.themacallan.com/

Even North Georgians like Me Enjoy Art.

Karla and I are blessed to count among our friends, Dusty Griffith, a politically conservative former baseball playing Auburn grad, who is also one of Atlanta’s better known artists. Dusty is one of the estimable Pryor Fine Art Gallery’s favorite. I am not artistically gifted, unlike my children, but I love viewing and learning the back story behind a piece. One should never underestimate the importance of a city having a thriving artistic culture.

Dusty and Sarah Cater have recently started a free ranging collaboration in which they drink a bit of wine and then paint back-and-forth and produce a work that is different than either one’s work. I can’t wait to see what these guys concoct together.

One of my friends who differs with me on almost every one of political beliefs, and with whom I occasionally debate, has a daughter Erin Henry, who may not even be 21, but is selling impressive work, especially nudes. I wonder what she’ll be doing at 30.

Books.

I’m still pondering Run like Hell and Arsenal of Democracy (see my earlier Post) but recently shifted to fiction. I am not a true intellectual and I must alternate fiction and Non-Fiction.

Outpost, by W. Michael Gear.

This is a fine addition to the Sci-Fi genre of realistic descriptions of future colonization efforts combined with Realpolitik competitions between the various factions and earth. I especially enjoyed the strong character development, especially of the women (who kick a__ and take names). Characters are not one-dimensional. Even bad guys are not always entirely bad. Good guys die and you never lose interest. I hope that the prolific husband-wife team write more books centered on this planet. Damned fun read. Another great referral from my son, William.

The Map of Time: A Novel, by Felix J. Palma.

This one is an oddball. The writer strikes a Lemony Snicket-kind of narrator role and routinely breaks the Forth Wall. The story which teases you with H.G. Wells’ Victorian Sci-Fi twists and then lapses unexpectedly back into real world answers. The characters are mainly the stereotypical vacuous London upper crust of the time, who you want to throttle but thoroughly enjoy. The final twists genuinely surprised me. The story is creative and a great addition to whatever genre incorporates alternative history, homage to Wells, Joyce, Stoker, Holmesian mystery, and Victorian Sci-Fi.

The Catcher Was a Spy: The Mysterious Life of Moe Berg.

The title summarizes the book – Moe Berg was a Princeton graduate, Columbia Law grad, and journeyman catcher for the Sox and other teams during the 20s and 30s. He was a genuinely erudite guy but also cooperated with the press in their gleeful articles on Professor Berg and his Sanskrit reading and multilingual talents. Berg was naturally secretive and while charming, a loner at heart. He was thus well prepared to be a U.S. spy for the OSS in World War II. Berg generated in equal measure, truth and apocryphal stories, and the book tries to sort through them. The book should have been written in about a third less pages, but otherwise it’s a fun read.

I hope that you enjoyed this post. I enjoyed writing it.

Howard

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.

• In particular, men and women differ in their understanding of what constitutes it.

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.  California – Assembly 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!

• Georgia Tech Launches State’s First Professional Master’s Degree in Occupational Safety and Health
• Georgia Small Business Safety and Health Consultation Program

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.

ASSE.

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.

NBWA.

TEXO: The Construction Association.

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:

• Practical Guidance in What is Alcohol Awareness and Why is it Important?

• Myths about Marijuana: How Marijuana Causes Addiction and is Not Harmless.

• Healing the Addictive Family: What is Family Addiction Therapy?

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.

 Books.

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.

• The Arsenal of Democracy.

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.

• Coldheart Canyon: A Hollywood Ghost Story, by Clive Barker.

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.

Howard

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 howardmavity.com 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 howardmavity.com 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.I

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.

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: http://www.oshatoday.com/news-digest-item/heres-job-might-making-fat/ 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.

Movies.

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 – Laemmle.com, 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 ….

Howard

Tomorrow is the much-awaited Eclipse and employers are beginning to worry that they may not have taken all appropriate steps to protect their employees. Shockingly, OSHA does not maintain a Workplace Eclipse Safety Standard. Accordingly, employers should analyze the hazards presented by an Eclipse as they would any other hazard at the workplace. Even if spiders, snakes and poison ivy are universal, employers nonetheless protect their employees from these hazards when present in the workplace.

1. Assume that employees will not exercise common sense and use good judgment. As an example, the most common reaction of a diner when told that their plate is “very hot,” is to … you guessed it …. Touch said hot plate.
2. Education is the essential first step for every employer. Every news outlet in the free world is talking about Eclipse safety, but do not assume that your employees read the omnipresent recommendations. Below are just a few decent sources:

• NASA Recommendations on Safe Practices.
• National Safety Council Recommendations.
• Space.com Where, When and How to View the Solar Eclipse.

3. Determine positions and job tasks that may reasonably be exposed to the hazard. Drivers and construction workers outside, servers at rooftop lounges, etc.

4. Determine the seriousness of the exposure and appropriate responses.

5. Educate them regarding the hazards present at your worksite or with their jobs and provide instruction and/or Personal Protective Equipment (PPE).

• Maybe instruct the employees to go inside and don’t look at the darned Eclipse during the critical periods?
• Provide appropriate glasses? This decision may be a philosophical decision rather than a safety decision. I don’t believe that you want employees working, driving, or operating equipment while wearing special glasses.
• And if you do decide to provide special glasses, make sure that anything you provide as an employer is absolutely properly certified and approved. Reports are rife about inadequate or non-certified glasses making an appearance. From the August 18 Athens Banner Herald:

Some schools canceling classes or keeping pupils inside due to non-certified eclipse glasses

• And while there are reportedly safe homemade/jury rigged ways to watch the Eclipse. Employers don’t need to recommend them.
• Personally, the Pinprick Method or a homemade Camera Obscura sound pretty cool to me, but not as an employer recommendation.

6. NOTE: Filmmakers, news crews and others have a higher duty because their work may involve observing, studying or filming the event. Of course, these groups are better equipped in terms of equipment and special expertise, but should not become casual or sloppy. As an analogy, more experienced highly skilled construction workers fall to their deaths each year than inexperienced rookies. Superior knowledge and frequent exposure breeds contempt. Don’t assume that scientists and photographers do not need to be reminded to NOT take short cuts.

The Day of the Triffids.

When I was 12, I read John Wyndam’s 1951 groundbreaking sci-fi book, The Day of the Triffids, which scarred me for life with regard to Eclipses and other fun viewable solar displays. Don’t confuse the thoughtful sci-fi thriller book with the entertaining but not nearly as good 1962 movie.

In this chilling book, everyone who wakes up the day after watching an amazing solar display is – you guessed it – blind. This would be bad enough, but it seems that some years before, scientists discovered and began improving these nasty plants, which produced highly useful products, but also grew to about six to ten feet high, shuffled about, and had a deadly stinger with which they could strike prey from six or seven feet away. Oh. And they were nice to look at – this conversation was presumably overheard at a local botanical garden: “look dear at that colorful and beautiful death dealing flora from the bowels of hell! Can we get one for our garden so that baby Floyd can play in its colorful shade? Lowes has them on sale!”

So, pretty soon, acres were devoted to cultivation of Triffids or to charming city parks and gardens. Stingers were regularly trimmed off and the wondering plants were chained to steel spikes driven into the ground. What could possibly go wrong! Yep; nothing accept a worldwide instantaneous plague of blindness, thus guaranteeing that the Triffids get free, grow back their stingers and become the apex predators. Since they are plants, reproduction is easy and apparently the critters had decidedly crappy attitudes once they formed large freely roaming murderous hordes.

I may overcome my irrational fear of solar displays and enjoy tomorrow’s display … or I may hide in the basement huddled with firearms, MREs and cans of Roundup. We’ll see.

Howard