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.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.

Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E – Means of Egress (specifically, the various requirements of 1910.36).  The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.

In the enforcement memorandum, OSHA announced that:

“During inspections of all workplaces [Compliance Safety & Health Officers] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.”

This list of items for review is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet.  Here are the basic requirements for complying with 1910.36 set forth in OSHA’s regulations and the Fact Sheet:

  1. Employers must determine how many exits routes are required in its building.  As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace.  One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
  2. Exit routes must be maintained unobstructed, and the exit doors must remain unlocked from the inside.  Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings.  Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside.
  3. Exit routes and doors must be properly labeled and maintained.  Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting.  Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).

Although the Enforcement Memorandum features the tragic anecdote about the Chinese poultry plant, OSHA’s Director of the Directorate of Enforcement specifically instructs his enforcement team to look out for egress issues in inspections at “all workplaces.”  Continue Reading OSHA To Target Exits and Exit Routes

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program (“SVEP”).  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

  1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
  2. Effectively allocating OSHA’s follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP’s underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

  1. Disproportionately targets small employers;
  2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

 

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees’ health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program (“EEP”), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

  1. Any alleged violation categorized by OSHA as “Egregious”;
  2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
  3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
  4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical). Continue Reading OSHA Claims Its Severe Violator Enforcement Program is “Off to a Strong Start”

By Eric J. Conn, Head of EBG’s OSHA Practice Group

We are asked frequently by employers in the restaurant, delicatessen, and grocery industries whether OSHA’s Personal Protective Equipment (PPE) and Hand Protection regulations require the use of cut-resistant gloves for employees who work with knives or slicers.  Some employers have even reported that OSHA representatives have told them that the use of cut-resistant gloves is mandatory for employees working with knives in food service.  Whether food service employees in kitchens, delicatessens, or grocery stores are required to wear cut-resistant gloves, however, is not as clear-cut as OSHA has apparently been suggesting.

What is clear is that OSHA’s PPE standards are “performance-based” standards, not “specification” standards.  What that means is, the PPE standards do not proscribe specific PPE for specific circumstances.  Rather, the standards defer to employers’ reasonable judgment about what PPE is necessary, for which employees, in which circumstances.

The applicable standard, 29 CFR 1910.138(a), provides:

“Employers shall select and require employees to use appropriate hand protection when employees’ hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.”

1910.138(a) is part of a series of standards regarding PPE for various parts of the body that stem from a general PPE requirement set forth at 1910.132(d)(1), which provides that:

Employers “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).”

Under the plain language of these regulations, and a long history of enforcement policies and OSH Review Commission case law, if employers perform a good faith hazard assessment in connection with the work activities and equipment at their workplace, and they conclude based on that assessment that employees are not exposed to laceration/amputation hazards or that cut-resistant gloves are not appropriate PPE, and the conclusion is reasonable, then no citation should issue.

A July 3, 1995 Interpretation Letter issue by OSHA confirms this view of the PPE standards:

“What the employer is required to do is to perform a hazard assessment, and OSHA would expect that an employer will be particularly careful before considering that none of its employees in the listed occupations are exposed to hazards which necessitated the use of PPE.  In litigation, of course, it would be OSHA’s burden to prove that a hazard assessment was not done.  OSHA also believes that a standard of objective reasonableness is implicit in the requirement, and that accordingly, OSHA could cite for an unreasonable assessment.  Again, the burden of proof would be on OSHA.”

Factors that will impact the reasonableness of an employer’s hazard assessment include:

  1. The existence of past injuries (i.e., look for lacerations or amputations on past OSHA 300 Logs);
  2. Employee input (e.g., employees generally dislike gloves in this context because they sacrifice feel and dexterity of their fingers in relation to the blade); and
  3. The presence of other controls that protect against cuts, such as administrative safe cutting procedures and training, or engineering and equipment controls.

Last year we wrote a post on the OSHA Law Update blog regarding one very significant, recent case impacting this PPE analysis — Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012). Continue Reading Cut-Resistant Gloves in Restaurants, Delis & Grocery Stores — Not a Clear-Cut Requirement

By Eric J. Conn

In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June.  According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day.  I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory radar for quite some time.

Agency hold-ups, however, and more recently, election-year politics, have left the rulemaking process at a standstill.  The timeline below illustrates OSHA’s “progress” to date on the I2P2 Rule:

To justify the Agency’s most recent delay, an OSHA official explained that OSHA is still ironing out the proposal it plans to present to the SBREFA panel. OSHA stressed that it wants to deliver a “complete” proposal, including a range of alternatives that the Agency is considering.  Excuses aside, OSHA’s inability to get past this early step in the rulemaking process signals a long and difficult road ahead for the I2P2 rule.  After OSHA convenes the SBREFA panel, it still has to publish its proposed rule and solicit stakeholder comments before releasing a final rule.  Based on the time-consuming nature of this process and the delays we have already seen from OSHA, we probably will not see substantial movement on the rule until 2013.  Still, it is never too early for employers to start preparing.

While OSHA’s rule will likely allow for some degree of program flexibility, we expect that it will require employers’ I2P2 programs to include the following core components:

  • Management leadership;
  • Employee participation;
  • Hazard identification, prevention, and control;
  • Education and training; and
  • Program evaluation.

Further, an I2P2 rule will likely draw from current voluntary consensus standards for I2P2 programs, such as the ANSI/AIHA Z10 and the OSHAS 18001 standards, as well as state I2P2 laws and regulations (34 states currently incentivize or require employers to implement I2P2 programs through legislation or regulation).

No matter the Rule’s ultimate requirements, employer compliance will be crucial.  The I2P2 rule has the potential to become one of the most frequently used weapons in OSHA’s enforcement arsenal.  For example, if a workplace injury occurs, OSHA may not only cite the employer under applicable hazard-specific standard, it will likely also tack on an I2P2 violation. Alternatively, if a workplace injury occurs, but there is no hazard-specific standard for OSHA to cite, OSHA will rely on the I2P2 rule to impose fines against employers.  In either case, OSHA’s reasoning would be that the injury never would have happened if the employer had an adequate I2P2 program in place.

This type of enforcement pattern is already playing out at the state plan level.  Consider California for example, where employers have been subject to a state I2P2 standard since 1991.  Twenty-one years later, California’s I2P2 standard is the most frequently cited standard.  The bottom line is that although OSHA may not issue a final I2P2 rule until sometime in 2013, or later, employers should consider the potential far-reaching implications of the rule for safety, their budgets, and their reputations.

 

Bonnie I. Scott, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC, office, contributed significantly to the preparation of this post.

This week, Washington Legal Foundation published an article  regarding OSHA’s New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs.  The article expands on a February 2012 post entitled “Enterprise Enforcement: OSHA’s Attack on Employers with Multiple Locations,” here on the OSHA Law Update Blog.

The gist of the article and the prior blog post is that companies that operate multiple facilities in different locations, such as national retail and grocery chains, grain cooperatives, large national nursing and medical care organizations, manufacturers, hotel groups, and many others, need to be aware of four new Occupational Safety and Health Administration (OSHA) enforcement trends that have important corporate-wide consequences:

  1. A rise in follow-up inspections and Repeat violations at sister facilities within a corporate family;
  2. OSHA’s pursuit of company-wide abatement provisions in settlement agreements;
  3. OSHA’s requests for enterprise-wide relief from the Occupational Safety and Health Review Commission; and
  4. Implementation of OSHA’s Severe Violator Enforcement Program (SVEP), which incorporates elements of each of the above.

The full article explains these four initiatives and how OSHA is implementing them.

By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicating that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff.  The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the  time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later identified in a subsequent inspection, OSHA would assert that this letter made the hazard a recognized one, for purposes of enforcement.  Therefore, if the hotel chain does not follow OSHA’s recommendations, subsequent inspections would likely result in a citation.  As well publicized as this battle has been, OSHA would likely take the same position with other hotel operators.  In other words, the entire industry may now be “on notice.”

The OSHA letter culminated what was nearly a year-long OSHA investigation of Hyatt hotels across the country.  The inspection activity was prompted in 2010 by multiple employee complaints filed in concert by housekeepers (through their Union, Unite HERE) across the country complaining of ergonomic injuries related to bending, stooping, twisting, and lifting while cleaning and making beds.

Hyatt responded to the OSHA letter through counsel and pointed out that despite the numerous employee complaints, OSHA did not have the evidence to issue one citation to the hotel chain.  In its response letter, Hyatt also reiterated its serious concern that the housekeepers’ union was using the Agency to drive its organizing efforts in the hospitality industry.

Hotel employers should be on alert for OSHA inspections at their properties.  As OSHA inspections involve interaction with local management, training at the property level is key to successfully managing an OSHA inspection.  Hotel operators with more than one location should also be aware of OSHA’s efforts to amplify the impacts of a single enforcement action throughout an entire corporate enterprise and to pursue follow-up inspections at related facilities in search of high dollar Repeat violations.  Accordingly, OSHA activity at one of your facilities should be clearly communicated to other similarly-situated facilities, and any of OSHA’s findings should be corrected throughout the enterprise.

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule.  Here’s the short list:

  1. New Hazard Classification Criteria
  2. New Method for Evaluating Mixtures
  3. Amended Label Requirements
  4. Proscrictive Format for Safety Data Sheet
  5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
  6. Information and Training Requirements
  7. Other Effective Dates
  8. Inclusion of a Category of Hazards Not Otherwise Classified
  9. No Preemption of State Tort Laws
  10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

 

  1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
  2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
  3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
  4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
  5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
  6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
  7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
  8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
  9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
  10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.