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.

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 beginning next year, when OSHA fines are set to rise about 80 percent.

See below to view the episode and read Valerie Butera’s recent post on this topic.

Valerie ButeraOSHA 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 possible for the agency to issue costly repeat citations, which carry fines as much as ten times higher than the current limit on citations classified as serious.

This is what happened to Dollar Tree Stores Inc. (Dollar Tree), which recently entered into a corporate-wide settlement agreement with OSHA to resolve citations arising from 13 different inspections – many involving blocked emergency exits, obstructed access to exit routes, electrical equipment, and improper storage of merchandise.  The settlement applies to some 2,400 Dollar Tree stores throughout the United States subject to regulation by Federal OSHA, but state plans having Dollar Tree stores located in their jurisdiction have been strongly encouraged to adopt the parameters of the settlement agreement as well.

Dollar Tree must pay $825,000 in fines to resolve the citations, but that is just the beginning.  In addition, the retailer must provide immediate safety training in its stores in a manner that all employees are able to comprehend, abate the issues identified in the inspections as quickly as possible, issue a newsletter regarding health and safety issues to its employees at least quarterly, submit to multiple safety audits at stores selected by OSHA, and quickly address any issues identified in the audits.

Dollar Tree must also put a number of additional administrative and engineering controls in place, but what is perhaps the most onerous element of the agreement is that it requires the employer to adopt a safety and health program focusing on the core elements included in OSHA’s Safety and Health Program Management Guidelines (Guidelines).  The Guidelines were originally published in 1989, but major revisions have recently been published and OSHA is welcoming comments on the new version through February 15, 2016.

Dollar Tree must design a program that focuses on the core elements set forth in the 1989 Guidelines, as the revised version has not yet been finalized.  Specifically, the retailer must: (1) demonstrate its commitment to workplace health and safety; (2) involve employees in the safety and health program; (3) identify health and safety hazards; (4) control health and safety hazards; (5) provide education and training for all employees related to the safety and health program; and (6) evaluate the safety and health program.  Essentially, the settlement agreement requires the employer to create a culture of safety throughout the organization.  Although Dollar Tree is required to create a program addressing all of these elements, the Guidelines are not prescriptive.  OSHA recognizes that every business is different and offers a non-exhaustive list of possibilities that employers could choose from in creating a safety and health program that comports with every element of the Guidelines.

Employers should expect OSHA to more frequently demand the incorporation of the Guidelines in future settlement agreements.  The agency has publically announced that adoption of the Guidelines and the creation of a safety culture is a top priority.

So what actions can employers take now?

  • If OSHA has already issued repeat citations to your organization for alleged violations at multiple locations, consider discussing with counsel whether working toward achieving a corporate-wide or regional settlement is a good option for your business. If, as anticipated, OSHA raises fines by about 80% this year (see related story), and your business continues to accumulate citations, those citations could become increasingly more costly in the coming months and could be far more difficult to settle as OSHA will have increased bargaining power once the fines are raised.
  • Review the proposed revisions to the Guidelines and submit comments regarding their strengths, weaknesses, and potential impact on your business.
  • Review your organization’s safety and health programs and consider taking proactive measures to create a program that includes the elements of the guidelines. Although an initial administrative and financial investment will likely be required, creating a safety culture usually pays dividends — improving worker safety and morale, decreasing workers’ compensation costs, and decreasing the possibility of receiving OSHA citations.

Valerie ButeraRetailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.

See the advisory for more information – below is an excerpt of my tips for retail employers:

  • Train your safety and human resource professionals and your managers on the new reporting requirements.  Again, all retailers must promptly report to OSHA any fatalities, amputations, loss of eye incidents, or in-patient hospitalizations.
  • Be aware that you can report to OSHA by:
    1. Calling OSHA’s free and confidential number: 1-800-321-OSHA (6742)
    2. Calling your closest Area Office during normal business hours
    3. Using the new online form that will soon be available on OSHA’s website
  • If you have retail establishments in one or more of the jurisdictions with a state plan, contact the state plan’s office to determine when you must comply with the rule and if the state plans’ reporting rules have additional requirements.  OSHA has encouraged state plans to require compliance by January 1 but recognizes that not all plans will be able to do so.
  • Contact counsel for advice on how to best navigate an OSHA inspection to ensure your preparedness should OSHA decide to investigate the circumstances leading to a reportable injury or illness.
  • To the extent that any of these newly reportable incidents have taken place at any of your retail establishments in the past, review the details of the incident and audit that facility and others that you believe may pose safety concerns.  Identify safety hazards and address any possible health or safety hazards that you discover.
  • If you are among the newly identified retail industries required to complete OSHA’s injury and illness recordkeeping, seek assistance from counsel in navigating these very complex requirements.  Ensure that safety and human resource professionals in your organization are properly trained and fully understand how and when to record an occupational illness or injury in your OSHA logs.
  • Retailers that have already been subject to the recordkeeping standard should review their logs to spot potential trouble spots, and provide refresher training to safety and human resource professionals in order to help ensure full compliance with the rules.

With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.

Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather.  OSHA recently sent letters directly to major retailers, retail trade associations, and fire marshals enclosing its recommended crowd management guidelines and encouraging employers and first responders to establish a plan well ahead of events likely to draw large crowds, such as Black Friday.

Crowd management plans should include, at a minimum:

  • Barricades or rope lines that do not start immediately in front of store entrances to manage pedestrian traffic;
  • Police officers or other trained security or crowd management personnel on site;
  • Communication to shoppers of updated information about the event and the store, such as the location of entrances and exits, store opening and closing times, and the location of hot items within the store;
  • Additional staff sufficient to meet the needs of large crowds of customers;
  • Crowd management training for all employees to ensure that they understand how to manage the event;
  • Prevention of additional shoppers from entering the store when it is at or near its maximum occupancy level;
  • Clear and unobstructed pathways to all exit doors, which should be unlocked;
  • Emergency procedures in place in case a dangerous situation does arise; and
  • Instructions to employees that in the event of an emergency they should follow instructions from first responders regardless of company rules.

If they have not already done so, retailers should begin crowd management planning for Black Friday now.  Reach out to local police and other first responders to inform them if large crowds are expected at your stores on Black Friday and coordinate a response plan in case an emergency takes place.  Taking time to employ these simple measures will go a long way towards ensuring that employees enjoy a safe and healthy holiday season.