Eleven Safety Resolutions for 2011
February 1, 2011Comments
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).
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.