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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 ‘OSHA’ 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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VPP likely to take a hit under OSHA’s proposed 2014 budget

April 18th, 2013 posted by Jim Stanley

Jim Stanley

It appears likely that the Voluntary Protection Program would take a hit under the President’s proposed 2014 budget for OSHA, while funding for the whistleblower enforcement program would substantially increase.

According to a report by Bloomberg BNA, OSHA would hire 47 new staff members for the whistleblower enforcement program with the program’s budget increasing $5.9 million to $21.8 million. Meanwhile, 33 positions would be cut from the compliance assistance program.

David Michaels, Assistant Secretary of Labor for OSHA, said in a web conference about the budget that enrollment growth in VPP would slow.

“To focus on the integrity and modernization of OSHA’s cooperative programs and reduce the backlog of VPP recertifications, the agency will slow the growth in the number of new cooperative program participants,” Michaels said.

He also said OSHA has no plans to turn VPP into a fee-based program, an idea that OSHA previously explored.

 

Posted in Legislation, OSHA | No Comments »





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 »





More of the same: Michaels to stay on as head of OSHA

February 11th, 2013 posted by Jim Stanley

Jim Stanley

Leadership changes have been taking place all over the executive branch of government as President Obama begins his second term, but one place where the top ranks will remain the same is OSHA.

The Small Business Administration reported on its blog that David Michaels, assistant secretary of labor for OSHA, would stay on the job, as would two other top leaders, deputy assistant secretary of Labor Jordan Barab, and Chief of Staff Deborah Berkowitz. The news came out when Barab spoke at one of the SBA’s small business roundtables.

The OSHA leadership team also seems intent on forging ahead with it at least some items of its existing agenda. Barab announced at the roundtable, for example, that the agency would forging ahead with work on its Injury and Illness Prevention Program, also known as I2P2. There is little reason to believe that other key elements of the OSHA agenda, such as ramped-up enforcement, will change either.

Posted in 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 »





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