You and the Law



Eleven Safety Resolutions for 2011

By: Doug Ehlke

Tuesday, February 1, 2011
1) Verify and document the field effectiveness of your ear-protection devices. OSHA seems only interested in enforcement and generating higher penalties. Six-figure fines are increasingly common in major safety investigations. In a recent hearing-conservation case, an Occupational Safety and Health (OSH) Review Commissioner ruled that:

“Employer violated noise-monitoring standard because it failed to conduct repeat noise monitoring to determine if hearing-conservation methods implemented 25 years earlier were still effective in light of changed working conditions during that time and since managers knew there had been significant changes to facilities and machinery, knowledge of violation is imputed to employer; violation was properly categorized as serious because hearing loss is irreversible medical condition.”

Secretary of Labor v. Nebraska Aluminum Castings Inc., 23 NA-OSHC 1309 (September 30, 2010)

Witness also OSHA’s proposal to completely change the PMA-member noise-standard litigation (from the 1980s) where effective ear muffs and plugs having 25-dB hearing protection in the ear were viewed as better protection for the employee than die enclosures, costing $3000 or more each (where ear protectors would still be required). “Feasibility” has been viewed under a balancing cost-benefit test. OSHA now wants noise-engineering economic feasibility to be determined by a “can you afford it” test. It wants to redefine what is feasible to shift the focus to engineering out the noise, as long as you can continue to afford the engineering control(s) on a corporate financial macro level.

There still would be a defense of technical infeasibility, but if implemented and enforced, this new economic feasibility policy reinterpretation would destroy small manufacturing companies and their hearing-protected workers.

2)The OSH Review Commission is deciding “Piercing the Corporate Veil” cases and finding “willful” and “repeat” violations where the inspected corporation is a “successor” or has “substantial continuity” of operations to its change legal identity predecessor company. In the case of Secretary of Labor v. Sharon & Walter Construction, Inc., 23 BNA-OSHC 1286 (R.C. November 18, 2010) “willful” and “repeat” violations to fall-protection standards were based on prior final order citations given to the same corporate owner of other owned companies doing the same type of work. The commission also rejected the employer’s “independent contractor” defense, finding employee status where the company controlled the worker’s hours, assignments, and schedule—if a job was finished early, the maintenance worker was not free to leave for the day but instead had to return for other assignments.

3)The state of mind of supervisors or managers is a key factor in determining what is or is not a “willful” violation. The Sharon & Walter Construction, Inc. decision reflects this required threshold for a willful violation:

“The hallmark of a willful violation is the employer’s state of mind at the time of the violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or…plan indifference to employee safety.’ Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181, 2000 CCH OSHD ¶ 32, 134, p. 48,406 (citation omitted), aff’d, 268 F.3d 1123 (D.C. Cir. 2001).

“It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation… A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind conscious disregard or plain indifference…”

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, pp. 41, 256-257 (No. 89-433, 1993).

“[A]n employer’s prior history of violations, its awareness of the requirements of the standards, and its knowledge of the existence of violative conditions are all relevant considerations in determining whether a violation is willful in nature.” MJP Constr. Co., 19 BNA OSHC 1638, 1648, 2001 CCH OSHD ¶ 32,484, p. 50,307 (no. 98-0502, 2001), aff’d without published opinion, 56 F. App’x 1 (D.C. Cir. 2003)”

The opposite of willful is an employer’s good-faith attempts to comply. Another opposite of willful is a good-faith compliance judgment call made at the worksite by a foreman.

4) Be careful what you include in insurance audits and reports; OSHA is subpoenaing these. Retain the right in audit agreements to disagree with infeasible or incorrect findings or proposal, and conduct significant or sensitive studies under the attorney-client work-product privilege.

5) Train workers to not bypass safety guards, device or machine-manufacturer’s safety equipment. Train and retrain them on lockout-tagout. Train them to recognize and report jobsite hazards, and to immediately shut down any unsafe equipment. Document all training, including on-the-job training, shadowing or mentoring. Establish training files for employees, and use a daily checklist to monitor compliance. Establish a method of detecting violations and take appropriate disciplinary action.

6) Ensure that safety blocks used during repairs and adjustments performed inside the die area have a cord and plug attached inside a protective metal chain. Safety blocks should be painted yellow and be available at every mechanical press—inspectors look for them.

7) Prevent class actions and major claims, which are in vogue. Review exemption categories. Consider weekly incentive pay when necessary as part of the overtime pay-rate computation. Class actions challenge independent contractor classifications, industry-based pay practices and claims for work allegedly performed during unpaid meal periods or off-the-clock work.

8) Pay attention to sales and management employment agreements—often neglected and occasionally litigated, these confidentiality and noncompete agreements can assist in reigning in managers from disclosing pricing, trade secrets or proprietary data to competitors. And, maintain a strong e-mail and computer-use policy.

9)When considering any plant closing or major layoff, review the impact thresholds for required advance notices to employees under the Federal Warn Act. The act is not triggered if fewer than 50 full-time employees suffer employment losses at a single site of employment within any 90-day period. Tracking this count at each single site of employment acts as an early warning system for potential Warn Act exposure. (State law note: The same doesn not hold true in every state, so applicable state law also must be consulted.)

If the 50-employment-loss minimum threshold is crossed, whether the act is triggered depends on whether there also has been a plant closing or mass layoff. Applicability will be triggered by a plant closing if the 50-employment-loss test is exceeded during any 90-day period by counting only employment losses due to the closure or substantial closure of one or more facilities or operating units within the single site of employment. The act also will be triggered by a mass layoff if the 50-employment-loss test is exceeded, and at least one-third of the active full-time employees at the single site of employment suffer employment losses within any 90-day period. Alternatively, Federal Warn liability will be triggered by a mass layoff if at least 500 full-time employees (active or not) at the single site of employment suffer employment losses within any 90-day period.

10) This is a good time to review and tighten up purchase orders, order entries, and sales acknowledgment and contract-collection procedures and clauses. The “battle-of-the-forms” still exits along with the “magic language” clause. Also examine your remedy and damages limitation clauses for maximizing protection when goods purchased or sold are defective, out of spec or untimely.

11)Review and update employee handbooks and policies. Ensure there is a no-retaliation aspect to the worker-complaint reporting procedures. MF


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