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Occupational Safety Blog

By Fred Rine, CEO of FDRsafety and former long-time Managing Director of Safety and Health at FedEx, Jim Stanley, President of FDRsafety and former No. 2 at OSHA headquarters and Mike Taubitz, Senior Advisor to FDRsafety and former Global Safety Director for General Motors.


Archive for the ‘Enforcement’ Category

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Do the laws of math apply in Washington?

May 17th, 2013 posted by Jim Stanley

Jim Stanley

The recent news about the IRS has strangely, or maybe not so strangely, got me thinking about a high school algebra problem: if A=B and B=C, then does A=C?

I’ll leave it to you to solve the problem and will give you until the end of this blog post to do so.

Speaking of problems, it is interesting to read a recently released interpretation letter from Richard Fairfax, then Deputy Assistant Secretary of Labor for OSHA. Fairfax, who retired after the letter was written, was responding to a union inquiry.

In the letter, Fairfax said that non-union employees can select anyone, including representatives of a union, to accompany an OSHA compliance officer during an inspection of their worksite. Some employers believe this is an unfair way to favor unions by giving them backdoor help in trying to organize a workplace.

Here’s what Fairfax said, in part:

“The OSH Act authorizes participation in the walk-around portion of an OSHA inspection by ‘a representative authorized by [the employer's] employees.’ 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walk-around representative so long as the individual has been authorized by the employees to serve as their representative.”

This marks a major departure in procedures for OSHA inspections and litigation seems likely from unhappy non-union employers, some of whom already believe that OSHA favors union workplaces when it comes to inspections.

As I said at the start, current events draw the mind in interesting directions.

So what did you come up with when you did the math?

 

Posted in Enforcement, OSHA | No Comments »





Non-union employees may have union rep accompany OSHA inspector

May 10th, 2013 posted by Jim Stanley

Jim Stanley

Non-union employees can select anyone, including representatives of a union, to accompany an OSHA compliance officer during an inspection of their worksite, according to a recent interpretation letter issued by OSHA.

This marks a major departure in procedures for OSHA inspections and potentially provides an opening for union organizers to get a presence in a non-union workplace. As noted in an article by the Constangy Brooks & Smith law firm, the letter is provoking a backlash from employers.

The letter, released April 5, but dated Feb. 21, 2013, was in response to a request from Steve Sallman, a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

Sallman had asked whether workers at a non-unionized workplace could authorize a person affiliated with a union to act as their representative under the OSH Act. Richard Fairfax, Deputy Assistant Secretary of OSHA, responded in the interpretation letter that not only could a union representative be selected to go along on an inspection, but that workers had the right to choose anyone they pleased to act as a representative, including non-employees.

In addition, Fairfax said in the letter that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, non-employee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.

In my opinion, if OSHA goes forward with this policy, it is likely to result in employer litigation.

 

Posted in Enforcement, OSHA | No Comments »





Many state-run safety and health programs stumbling, GAO says

April 23rd, 2013 posted by Jim Stanley

Jim Stanley

OSHA is failing to hold state-run programs accountable for addressing problems in their programs in a timely manner, the Government Accounting Office says in a report.

The report, released last week, finds a number of issues in states with their own occupational safety and health programs. Under the law, states may opt to run their own programs rather than having the federal government do it, but have to meet federal standards while doing so or risk having OSHA take over. Twenty-six states have approved plans, although in several coverage is limited to employees of state and local government.

Among the problems identified by the GAO:

  • Many states have difficulty retaining inspectors because of higher salaries offered in private industry.
  • Some states have hiring freezes owing to budget pressures.
  • Training of state inspectors is falling short due to shortages of instructors and problems with obtaining appropriate equipment and facilities in the field.

“Although OSHA evaluates state-run programs during its annual reviews, GAO found that OSHA does not hold states accountable for addressing issues in a timely manner or establish time frames for when to resume federal enforcement when necessary,” the GAO said.

“In addition, the current statutory framework may not permit OSHA to quickly resume concurrent enforcement authority with the state when a state is struggling with performance issues. As a result, a state’s performance problems can continue for years.”

“GAO also noted that OSHA does not compile lessons learned from its past experiences when it has resumed federal enforcement in a state,” the report said. “This prevents the agency from building on previous experiences in responding to future situations.”

 

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OSH bill would increase penalties, expand coverage

April 9th, 2013 posted by Jim Stanley

Jim Stanley

Advocates of ramped-up enforcement are pushing again to revise the Occupational Safety and Health Act, with a goal of increasing penalties and widening OSHA’s jurisdiction.

The bill, introduced late last month in the Senate, would:

  • Increase the maximum penalty for “repeat” and “willful” violations from $70,000 to more than $100,000.
  • Expanding criminal liability to make willful violations causing death or serious bodily injury a felony rather than a misdemeanor.
  • Place all federal and state government employees, and some local government employees, under OSHA’s jurisdiction.
  • Create new liabilities for “site-controlling” employers at multi-employer worksites.

An article by Pat Miller and Matt Morrison at the Sherman & Howard law firm provides more details. The article notes that the Senate bill is a revived version of the Protecting America’s Workers Act, or PAWA for short, which failed to be passed in 2009 and 2011.

“Given the current composition of the U.S. House of Representatives, passage of the PAWA – at least in its present form – is unlikely,” the Sherman & Howard article says.

“However, if passed, the PAWA will significantly alter the OSHA landscape for public and private employers. Even a substantially revised and weakened PAWA could make important modifications to the OSH Act.”

Posted in Enforcement, Legislation, OSHA | No Comments »





Supreme Court decision means OSHA has 6 months to issue citations

March 5th, 2013 posted by Jim Stanley

Jim Stanley

OSHA can no longer issue citations alleging violations more than six months old.

That is the impact of a U.S. Supreme Court decision issued Feb. 27 in a case called Gabelli v. SEC. Although the case dealt directly with the Securities and Exchange Commission, it applies to OSHA as well.

The issue, as described in an article by the McDermott Will & Emery law firm, centers on the so-called discovery rule for postponing the running of a statute of limitations when a federal government agency seeks a civil penalty.

“The Court held that the limitations period begins to run once a violation occurs, and is not postponed until the agency discovers or reasonably should have discovered the violation,” the law firm said.

The decision “effectively eliminates what might have remained of the OSH Review Commission’s 1993 Johnson Controls decision, which had endorsed the use of a discovery rule in Occupational Safety and Health Administration (OSHA) recordkeeping cases.”

The ruling follows one issued by the U.S. Circuit Court of Appeals for the District of Columbia in the so called “Volks” case, which “disapproved of OSHA’s continuing violation theory, under which the limitations period does not begin to run until the violation is corrected.”

 

 

 

Posted in Enforcement, OSHA | 1 Comment »





Court decision changes rules on issuing violations

February 19th, 2013 posted by Jim Stanley

Jim Stanley

A federal appeals court has loosened one of the traditional standards of proof required for OSHA to issue a violation, potentially increasing vulnerability for employers.

The case involved a citation against an employer for failure to properly barricade the swing radius of a crane. What made the case unusual was that no employee was actually exposed to danger. Rather the 6th U.S. Circuit Court of Appeals said it was sufficient that an employee could have been exposed had he or she been in the zone of danger.

According to a report on the case by the OSHA Law Update from the EpsteinBeckerGreen law firm, the decision went against “the long-standing test for OSHA to establish a prima facie violation of an OSHA standard.”

The test includes “OSHA proving by a preponderance of the evidence that:

  1. The cited standard applies to the cited condition;
  2. The requirements of the cited standards were not met by the employer;
  3. The employer knew or should have known with the exercise of reasonable diligence about the hazardous condition; and
  4. Employees were exposed to the hazardous condition.”

It is that last element of the test that the decision changes.

“This decision appears to be a departure from settled law,” according to the OSHA Law Update. “Although it ought to be limited to employers within the Sixth Circuit’s reach (i.e., Ohio, Michigan, Kentucky, and Tennessee), if the reasoning is adopted by other Circuits, employers could be opened up to liability for a parade of imagined horribles, as opposed to real world exposures.”

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Posted in Courts, Enforcement, OSHA | No Comments »





OSHA’s shaming of innocent companies lives forever

February 8th, 2013 posted by Jim Stanley

Jim Stanley

OSHA citations come and go, but the agency’s news releases never die – even when they announce alleged violations at companies who are eventually found not to be in violation of OSHA regulations.

The barrage of news releases the agency issues each month announcing enforcement actions are part of a strategy of deterrence that OSHA Assistant Secretary of Labor David Michaels is happy to describe. Michaels has said he views the shaming news releases as a cost-effective way to increase enforcement without hiring additional inspectors.

The problem is that the press releases are issued when OSHA alleges violations and proposes fines against a company, not when the cases are resolved. In my opinion, however, after the news release is issued the company is viewed by its industry peers as being in violation of OSHA regulations. (What happened to innocent until proven guilty?) So a company’s reputation can be hurt, and is hurt in many instances, over allegations of violations that are unproven.

A case in point

AK Steel’s Butler, Pa, manufacturing facility is just one example of a company where a news release was issued, in this case alleging that the company failed to record outcomes indicating hearing hazards for workers.

In June 2011, OSHA cited AK Steel for willful violations that addressed the company’s failure from 2007 to 2010 to record standard threshold shifts on the OSHA 300 log. OSHA news release defined a willful violation as one committed with plain indifference to, or intentional disregard, for employee safety and health.

In my opinion, however, AK Steel is one of the safest steel manufacturing companies in the world and has an undisputed reputation for safe operations.

AK Steel chose to contest the violations and all were ultimately dismissed by an Occupational Safety and Review Commission judge. OSHA, however, did not throw out the original press release. It lives on the agency’s website - never updated.

It’s how OSHA does it

This is OSHA’s standard operating procedure. You will be hard pressed to find an updated press release on its website. Don’t get me wrong: Companies that endanger worker health and safety ought to be cited. But it’s time for OSHA to start playing fair.

Companies are not guilty until proven innocent. OSHA ought to be willing to take a dose of its own medicine. If OSHA issues incorrect citations/violations the mistake ought to be made public. OSHA could easily update its original release with the news, for example, that violations have been dismissed.That way the public could get the rest of the story.

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Posted in Enforcement, OSHA | No Comments »





Rule coming, at long last, on confined space in construction

January 15th, 2013 posted by Jim Stanley

Jim Stanley

As I recently wrote, one of the best ways OSHA could help improve safety would be to update its own regulations, some of which are decades out of date.

But there’s another serious problem: regulations that have never made it to the starting gate. An example is the final rule on confined spaces in construction. The rule has been a decade in the making, and OSHA said in a recent update to its regulatory agenda that it anticipates issuing the rule in July.

The general industry standard has never been extended to construction because of the unique circumstances at construction sites. While that is true, it is not a valid reason to take a decade to write a rule.

Posted in Enforcement, OSHA | No Comments »





Remedies to CSA’s problems high on industry, government lists

January 3rd, 2013 posted by Rose McMurray

Rose McMurray

In 2013, you can be assured that the continuing effects of the two-year-old Compliance, Safety, Accountability (CSA) program on the trucking industry and commercial drivers will remain high on both the government and industry list of issues demanding attention.

Data inaccuracy, uneven state enforcement practices and untimely uploading of data will plague the CSA program until serious remedies are identified and are accepted by the major stakeholders.

Since the December 2011, nationwide roll-out of CSA, the government has been regularly making refinements to the original program. This was part of the overall Master Plan which anticipated that full-scale deployment would identify issues that did not surface during its limited state pilot testing phase.

DOT also plans to propose in a rulemaking scheduled to be issued for comment later this year to use the safety performance scores on its 7 CSA measures to basically equate to a carrier’s safety “fitness.” DOT is required by law to establish the safety condition of all the carriers within its jurisdiction but has historically been unable to do so because of the sheer number of companies (over 400,000) within its purview and the challenge of performing complete regulatory compliance reviews on each of them.

CSA replaced the old SAFESTAT system, which provided limited performance information and often misidentified carriers as “safe” when a comprehensive compliance review conducted on the same carrier often found otherwise. CSA was born as a way to tap into all the safety data the government maintains on carriers which, in turn, provides a fuller overall and more current picture of a carrier’s operations.  The idea is that instead of a full-blown and time-consuming review of a carrier, its own performance profile earned as a result of roadside inspections, reviews and crash involvement would be accurate enough to reflect the carrier’s overall safety condition. The proposed rule — the Safety Fitness Determination Rule (SFD) — is the final component of the CSA enforcement model.

Since data quality and sufficiency are under assault by the motor carrier industry, DOT has responded with studies of the accuracy of the thousands of police accident reports that underpin the Crash measurement, as well as establishing Task Force reviews to examine how CSA can be improved. It is highly unlikely the rule will be issued until these reviews are completed and the agency has an opportunity to decide its next steps.

Be assured that the DOT is as anxious to improve the quality of the data in order to accurately identify high risk carriers for intervention, as is the industry that wants fairness in the way its safety performance is portrayed. Data and carrier information is the essence of the ability of government to characterize a company’s safety “fitness.” Until that data problem is resolved and action follows to assure users that the data is complete and honest, the CSA program cannot reach the exciting potential its planners and users envisioned. Shippers, brokers, insurers,  as well as the general public need to make competent and informed decisions on the transportation providers they use and need to be able to confidently rely on the  government’s safety measurement system to help them make smart choices.

 

Posted in CSA, Enforcement, Transportation safety | No Comments »





Employers may have more room to appeal willful violations

December 19th, 2012 posted by Jim Stanley

Jim Stanley

What’s the difference between a willful OSHA violation and a serious one?

One answer: About $63,000 in penalties – the maximum for a violation classified as serious is $7,000, while the maximum for a willful violation is $70,000. With multiple violations possible in each citation, those numbers can grow quickly.

And now a ruling by the Occupational Safety and Health Review Commission could encourage more companies to appeal willful citations in hopes of having them reduced to serious.

A serious violation is one in which there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A willful violation is one committed with either an intentional disregard of, or plain indifference to, OSHA regulations.

In May, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious.

As related by Safety News Alert, the fines stemmed from an October 1993 incident in which a Dayton Tire employee in Oklahoma City died from injuries suffered when a machine activated unexpectedly.

What had been $1.975 million in fines for lockout/tagout violations dropped to $197,500, a 90% reduction.

The U.S. Court of Appeals, D.C. Circuit, had ordered the commission to reconsider the gravity of the fines because it said Dayton Tire made some effort to comply with the OSHA lockout/tagout regulations, so the violations weren’t willful.

“It takes a lot to be plainly indifferent” to OSHA regulations, the DC Circuit Court wrote in its opinion.

A stronger basis to contest

Now, in a blog post, attorney Shannon Young of Harmon & Davies writes this decision “gives employers an even stronger basis from which to contest willful OSHA citations.”

“What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a willful violation,” Young wrote.

An administrative law judge for the Occupational Safety and Health Review Commission appeared to be following that same logic in a second case. The judge ordered that a willful citation issued to a construction company be reduced to serious because the supervisor at the trench site was “inexperienced, uninformed and confused about how to protect employees.”

“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”

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