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Category Archives: Enforcement

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Top Issues of 2016 – Featured in Employment Law This Week

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.”

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Eleventh Circuit Upholds OSHA Violation with Participating Supervisor – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is the Eleventh Circuit decision limiting the supervisory misconduct defense against OSHA citations.

At a construction worksite, a supervisor and his subordinate from Quinlan Enterprises were found working on a 15 foot wall without fall protection or a secure ladder. The company was held responsible for the OSHA violation, because, in most cases, a supervisor’s knowledge of a violation is imputed to the employer. Quinlan appealed citing the Eleventh Circuit’s Comtran decision. Comtran held that when a supervisor participates in the violation … Continue Reading

New DOJ/DOL Initiative Criminalizes Worker Safety Violations – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is that in a year when OSHA penalties are already set to increase, a new enforcement initiative is putting pressure on companies to make sure they’re compliant.

The Department of Justice and the Department of Labor have teamed up to encourage federal prosecutors to pursue OSHA and other worker safety violations as environmental crimes. These crimes can be charged as felonies, while OSHA violations are considered misdemeanors. The initiative will facilitate the sharing of information and files between the DOJ and DOL … Continue Reading

The Eleventh Circuit Carves Out an Exception to the Supervisory Misconduct Defense

To establish that an OSHA regulation has been violated, the Secretary must prove that: (1) the regulation applied; (2) it was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer knowingly disregarded the OSH Act’s requirements.  The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.

The Court of Appeals … Continue Reading

OSHA Unveils Long Awaited Online Form For Reporting Work-Related Fatalities And Severe Injuries

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 … Continue Reading

Dollar Tree Agrees to $825,000 OSHA Fine – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is Dollar Tree’s $825,000 fine for OSHA violations.

Retail store Dollar Tree has agreed to a hefty fine as well as continual monitoring of its stores across the US. A third-party monitor will conduct audits on 50 stores over the next two years. This settles a wide range of complaints arising from 13 different OSHA inspections. The agency is increasingly using this tactic of issuing repeat citations for the same violations at different company worksites. This could have a much bigger impact … Continue Reading

Dollar Tree Resolves Multiple OSHA Citations in Burdensome Corporate-Wide Settlement Agreement: Is This a Sign of Things to Come?

OSHA has employed many creative strategies to maximize its enforcement efforts during the Obama administration.  One such tactic involves scrutinizing employers with multiple worksites (retailers are a particularly easy target), sending compliance officers to inspect one of the worksites, issuing citations, and then visiting the employer’s other worksites, identifying the same problems found in the first worksite inspected, and issuing repeat citations to the employer based on the citation issued at the original worksite.  This approach gives OSHA significant bang for its buck, not only creating the opportunity to issue more citations by inspecting multiple facilities, but also making it … Continue Reading

OSHA Fines Are on the Rise: Extended Interview from Employment Law This Week

As our regular readers know, I was recently interviewed on our firm’s new video program, Employment Law This Week.  The show has now released “bonus footage” from that episode – see below!

In the interview, I elaborate on my recent post, “Employers Beware: OSHA Fines Are on the Rise for the First Time in Twenty-Five Years.”

Thanks for watching – I’d love to know if you have any questions. (And what you think about these videos!)

 

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OSHA Fines Rise – Employment Law This Week

Employment Law This Week – Epstein Becker Green’s new video program – has an interview with attorney Valerie Butera, editor of this blog, on OSHA’s first fine increases in 25 years.

Under a new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015 – an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward. Valerie describes how employers can boost their safety programs and avoid OSHA citations.

See below to view the episode and … Continue Reading

Employers Beware: OSHA Fines Are on the Rise for the First Time in Twenty-Five Years

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 … Continue Reading

New NLRB Joint Employers Test – Why It Matters For OSHA

The National Labor Relations Board (NLRB) last week issued its decision in Browning Ferris Industries (pdf) adopting new standards for determining when a company will be held to be the joint employer of another company’s employees, whether they are leased, temporaries or providing services under their primary employer’s contracts with customers.  My colleagues Allen B. Roberts, Steven M. Swirsky and D. Martin Stanberry explore the new standards and what they mean for employers  in an article published on Epstein Becker Green’s Management Memo.

While the Occupational Safety and Health Act’s definition of “employer” is not identical to the definition … Continue Reading

OSHA Means Business in Targeting the Health Care and Nursing Care Industries

The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities.

Recently, OSHA cited LifeFleet LLC, an Ohio medical patient transportation company, for training shortfalls and bloodborne pathogen violations. OSHA alleged multiple violations, including several costly willful violations, and is seeking fines totaling nearly $236,000—a … Continue Reading

As Promised, OSHA Targets Health Care and Nursing Homes for Enforcement Actions

As previously discussed, OSHA has been carefully scrutinizing the health care industry lately.  And on June 25, 2015, OSHA officially introduced a new compliance nightmare for the inpatient health care and nursing home industries by announcing the details of the agency’s new health care enforcement initiative in a memorandum from Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, to OSHA Regional Administrators and State Plans. The memorandum is entitled “Inspection Guidance for Inpatient Healthcare Settings” (“guidance memo”).

The guidance memo requires both federal OSHA Regional Offices and State Plans to evaluate the number of work-related injuries … Continue Reading

OSHA’s Response to Compliance with the New Reporting Rules and What it Means to Employers

Although OSHA’s new reporting rule has been in effect for almost seven months now, it has caused some major changes in the way that OSHA operates.  Since the new reporting rule went into effect on January 1, 2015, OSHA has received more than 5,000 reports of work-related deaths, inpatient hospitalizations, amputations, and losses of an eye.  As OSHA anticipated, compliance with the rule has focused the agency’s attention on industries and hazards that it had not focused on before.  For example, because of the unexpectedly high number of reports of amputations from supermarkets, OSHA issued a safety Fact Sheet last … Continue Reading

Health Care Industry: OSHA Is Quietly Gunning for You – Is Your Workplace Ready?

On April 2, 2015, Thomas Galassi, Director of the Directorate of Enforcement for OSHA, sent a memorandum to all Regional Directors announcing that the agency’s National Emphasis Program on Nursing and Residential Care Facilities would be extended until replaced by updated guidance or removed by the agency.  Mr. Galassi went on to state that, because the health care industry reports more work-related injuries and illnesses than any other general industry,

the Agency will continue to use both enforcement and collaborative efforts to address hazards such as musculoskeletal disorders from lifting patients or residents, exposures to tuberculosis, bloodborne pathogens, workplace violence, Continue Reading

Protect Workers From The Number One Cause of Workplace Deaths – Distracted Driving

Distracted driving is the number one cause of workplace deaths in the United States.  OSHA has partnered with the National Safety Council to call employers’ attention to this issue and urge the adoption of safe driving policies.  Failure to adopt and enforce such policies in the workplace leads to tragic results and OSHA has made it perfectly clear that employers who do not take this issue seriously should expect OSHA citations.  On its distracted driving webpage, the agency has stated that employers “have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.”… Continue Reading

Five Steps Toward Boosting Employee Safety and Avoiding OSHA Citations

I recently authored Epstein Becker Green’s March issue of Take 5 in which I outline actionable steps that employers can take to improve safety and avoid costly OSHA citations.

Following is an excerpt:

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the … Continue Reading

Complimentary Webinar Video: OSHA Forecast, 2015 and Beyond

See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.

Topics include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
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OSHA Announces Its Regulatory Priorities for 2015

On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and
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EBG is Featured Webinar Speaker – Safety of Temporary Workers in California: Strategies for Meeting Cal/OSHA and Fed/OSHA Compliance Obligations

On Monday, December 1 from 10:30 a.m. to 12:00 p.m. Pacific, our colleague Alka Ramchandani will be a featured speaker in a webinar hosted by California Employer Resources.

Ms. Ramchandani will identify the potential risks and liability associated with retaining temporary workers in California. She will provide strategies on how to minimize risk and liability when hiring temporary workers by ensuring all contractual agreements, expectations, and performance requirements are in place. 

As California companies hire more temporary workers to deal with economic, staffing, and business challenges, more employers are at risk for noncompliance with state and federal safety regulations regarding Continue Reading

Complimentary Webinar – OSHA Forecast: Developments To Watch in 2015 and Beyond

To register for this webinar, please click here.

Join Valerie Butera, Member of the Firm in the Labor and Employment practice on Wednesday, December 10, 2014 at 1:00 p.m. EST for a 60-minute webinar.

This webinar will delve deeper into OSHA issues that will impact a wider 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.

Topics will include:

  • Where we are now
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Webinar Recording — OSHA’s Severe Violator Enforcement Program

On June 10, 2014, Epstein Becker Green’s national OSHA Practice Group presented a webinar regarding OSHA’s Severe Violator Enforcement Program (SVEP). The SVEP is an OSHA enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.”

The webinar covered:

  • What the SVEP is;
  • How and when employers “qualify” into it;
  • What the consequences are for doing so;
  • Interesting data and trends about the SVEP; and
  • Tips to help employers avoid this fate.

This webinar was the second part in a five-part OSHA webinar series for employers facing the … Continue Reading

Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as … Continue Reading

Webinar Recording — OSHA’s Temporary Worker Initiative

On April 8, 2014, Epstein Becker Green’s national OSHA Practice Group presented a webinar regarding OSHA’s Temporary Worker Initiative. The briefing addressed enforcement issues and data related to the temporary work relationship, and recommendations and strategies for managing safety and health issues related to the temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use … Continue Reading