As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. We asked at the time whether the Trump Administration would continue to defend that change in policy. This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

On Monday February 13th, OSHA filed an Unopposed Motion For Extension of time, requesting an additional 30 days to file an answer to the complaint, which otherwise would have been due today, February 17th. As OSHA’s lawyers explained in the Motion, the agency stated that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

While it may be risky to predict with assurance what the outcome will be of the incoming leadership’s assessment of the issues, there is a strong likelihood that the new leadership may abandon not only the defense of this legal challenge but that they will also return to the interpretation of the OSHA regulation allowing for an employee representative at such Safety Walkarounds until 2013. As OSHA’s own rules make clear, while employees have the right to an employee representative present, the “authorized representative(s) shall be an employee(s) of the employer,” unless “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

With the new administration’s nomination of R. Alexander Acosta , it appears that the new incoming leadership may be taking shape at the Department of Labor. No doubt, the question of union representation at OSHA safety walkarounds will be only one of many issues that the incoming leadership personnel at the United States Department of Labor will be taking time to reconsider.

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers at the site may accompany the OSHA representative conducting an inspection. The Federation argued on behalf of itself and one of its members because OSHA had permitted a representative of the Service Employees International Union (“SEIU”) to accompany him despite the fact the SEIU did not represent the workers at the facility. The lawsuit asserts that in allowing this, OSHA had violated its own rules and gave the union rights that it did not have under the law. In the Letter, issued in February 2013, OSHA gave a new definition of “reasonably necessary,” which supported its holding, for the first time, that a third party’s presence would be deemed “reasonably necessary,” if OSHA concluded that the presence of the third party “will make a positive contribution” to an effective inspection. The NFIB’s lawsuit contradicted both the OSHA statute itself and OSHA regulations issued in 1971 following formal rulemaking.

While OSHA asked the Court to dismiss the lawsuit, claiming that the NFIB lacked standing to bring the lawsuit because it could not demonstrate that it had been harmed, and that the lawsuit was procedurally flawed for a number of other reasons as well, Judge Sidney A. Fitzwater denied the U.S. Department of Labor’s Motion to Dismiss, finding that “NFIB as stated a claim upon which relief can be granted,” and that “the Letter flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”

The rule Judge Fitzwater referred to, 29 U.S.C Section 1903.8(c) contained OSHA’s policies for what are referred to as “safety walk-arounds,” which are on site workplace inspections. The Letter gives employees in the workplace the right to have a representative present during such an inspection. OSHA’s own rules make clear that such “authorized representative(s) shall be an employee(s) of the employer,” but that when “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” (emphasis added)

If the ultimate outcome of the case, which seems likely, is a finding that OSHA does not have the authority to permit union representatives to participate in OSHA inspections of workplaces where they do not represent the workers, the effect would be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

While it is too soon to say whether the Department of Labor will continue to defend the 2013 Letter and the position that OSHA has the right to permit union representatives to participate in safety and health inspections, Judge Fitzwater’s denial of the motion to dismiss raises serious doubt as to the long term viability of OSHA’s position.

On January 13, 2017, the Occupational Safety and Health Administration (“OSHA”) issued non-binding recommendations to aid employers with creating new or improving existing workplace anti-retaliation programs.  OSHA’s recommendations apply to all public and private employers that are subject to the 22 whistleblower protection statutes that OSHA enforces.[1]

Under the various federal whistleblowing protection statutes, employers are prohibited from retaliating against employees who report or raise concerns about workplace health and safety issues. OSHA encourages employers to create and maintain an effective workplace anti-retaliation program so they will not only comply with federal whistleblowing protection laws, but also create a workplace culture that prevents retaliation, improves employee morale and protects employers and members of the public from harm.

According to OSHA, an effective anti-retaliation program must: (1) prevent retaliation and address retaliation complaints; and (2) receive and respond appropriately to employee compliance concerns. OSHA cautions employers that an anti-retaliation program must not discourage or prevent employees from exercising their rights to report violations or file complaints about hazardous workplace conditions or potential violations of the law with OSHA or any other government agency.

OSHA recommends that an effective anti-retaliation program should include the following five key components:

  • Management leadership, commitment, and accountability
  • System for listening to and resolving employees’ safety and compliance concerns
  • System for receiving and responding to reports of retaliation
  • Anti-retaliation training for employees and managers
  • Program oversight

OSHA discusses each of these five key components in detail and offers helpful tips on how to incorporate them into an anti-retaliation program. Employers would be wise to compare their anti-retaliation program with OSHA’s recommendations to determine if any adjustments should be made to their program.

[1] The 22 whistleblowing protection statutes that OSHA enforces are listed at the end of the guidance.

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

Federal Guidance for Employers and Workers on Exposure to Zika VirusThe Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health issued interim guidance on April 10, 2016, for protecting outdoor workers who may be exposed on the job to mosquitos and healthcare and laboratory workers exposed on the job to body fluids of individuals infected with Zika virus.  Although the guidance is not a standard or regulation, employers should be mindful that OSHA can always issue citations under the General Duty Clause (OSHA’s catch all provision requiring all employers to provide employees with safe workplaces and safe work) should the agency find that an employer did not take sufficient precautions to protect employees from the virus.

Employers with outdoor workers, including seasonal retail lawn and garden workers in areas affected by the Zika, and workers in the healthcare industry should consult the guidance for information about the risk of exposure and effective worker protections.

Epstein Becker Green’s Valerie Butera was one of sixteen legal professionals  interviewed to provide a tip for Intelivert’s recent article titled “16 Legal Tips: Handling OSHA Citations the Right Way” (Intelivert, 2016).

The article notes that the lawyers weighed in with “simple, actionable tips that can help you craft your legal strategy and directly affect the outcome of your OSHA interaction.”

FINE INCREASES AND CRIMINAL PROSECUTIONS

Ms. Butera’s tip focuses on recent increases in OSHA fines and criminal prosecutions. She explains that “now more than ever, employers should be consulting with their OSHA counsel as soon as OSHA or the EPA show up. If an OSHA violation is found, the employer is not just facing huge penalties but a prison sentence as well.”

Read the full article and contact Valerie Butera with questions and concerns.

After a year of OSHA’s promises that an online form for reporting work-related fatalities and severe workplace injuries was “coming soon,” the agency finally unveiled the form on its website on December 24, 2015.  The online form is one of three options that employers can use to fulfill updated fatality and severe injury reporting requirements, which went into effect on January 1, 2015 (see related story).  Employers also have the options of calling the OSHA office nearest to their worksite or calling the OSHA 24-hour hotline at 1-800-321-6742 (OSHA) to make a report.

The updated reporting rule requires all employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye.  A fatality must be reported within 8 hours.  An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

No matter the option an employer chooses to use in making a fatality or severe injury report, the employer must be prepared to inform OSHA of the following information:

  • business name;
  • names of employees affected;
  • location and time of the incident;
  • brief description of the incident;
  • additional information relevant to the incident;
  • the number of fatalities and/or injuries;
  • the object or substance that have caused the harm (if known);
  • whether the harm was a fatality, hospitalization, amputation, loss of an eye or some combination of these; and
  • the identity of a contact person and their phone number.

OSHA has been unable to increase the civil penalties it can impose when an employer is cited for a violation since 1990.  But that is all about to change.  Hidden within the Bipartisan Budget Act of 2015, signed by President Obama on November 2, 2015, is a provision requiring OSHA to significantly increase its civil penalties.  A one-time “Catch Up Adjustment” will be based on the percentage difference between the Consumer Price Index in October 2015 (to be released later this month) and October 1990 – resulting in a penalty increase of approximately 80%.  This means that the $7,000 cap on serious violations would grow to $12,600 and the $70,000 limit on willful and repeat violations would increase to $126,000.  Had OSHA applied this increase to fiscal year 2014 penalties, which totaled $143.6 million, the total would have jumped to $258.5 million.  After this initial adjustment is made, OSHA will be required to adjust penalties every year using the annual percentage increase in the Consumer Price Index.

Although the agency is not required to take the full penalty increase, it probably will.  OSHA has tried for years to convince Congress to increase the civil penalties the agency can impose when an employer is cited for a violation.  Most recently, on October 7, 2015, Assistant Secretary of Labor for OSHA, Dr. David Michaels, told a House subcommittee that the “most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as weak criminal sanctions,” and that “OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”

The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA.  The law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, State Plans are likely to increase civil penalties as well.

This change adds yet another powerful weapon to OSHA’s growing enforcement arsenal.  OSHA under the Obama administration has made liberal use of the General Duty Clause, weighted inspections, and new reporting requirements – all of which have resulted is OSHA inspections of industries and employers that it has never targeted before.  Now more than ever, employers should be prepared for a potentially costly encounter with OSHA.

Employers are well-advised to:

  • Ensure that safety programs are comprehensive and up to date
  • Ensure that employees receive all necessary safety training, can demonstrate that they understood the training, and that all training is well-documented
  • Assess the workplace for hazards and address any identified hazards as quickly as possible
  • Talk with union representatives or employees at non-unionized facilities about their safety concerns and address any bona fide concerns as quickly as possible

Taking these steps will demonstrate the employer’s commitment to safety and help reduce the possibility of receiving what soon will be very costly OSHA citations.

Valerie Butera, Member of the Firm in the Labor and Employment practice, will present a complimentary webinar, hosted by Midwest Employers Casualty Company, on January 27 at 11:00 a.m. EST titled “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

This webinar will delve into OSHA issues that will impact a wide range of industries in 2015. In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.

For more information and to register for this webinar, click here.