Page 40 - MetalForming April 2010

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelawoffices.com
What’s New at OSHA
OSHA is on the move with funding for new inspectors, seeking to pro- pose much higher citation penalties, and is still willing to try to stretch the application of OSHA standards beyond their intended scope. Here is an update on a number of new developments.
1) Arc flash safety—OSHA is cit- ing employers for lack of training or unqualified, unprotected electrical workers and activities under 29 CFR 1910.331-1910.335 safe work proce- dures and training under the NFPA70E (2004 Edition) of the Standards for Electrical Safety in the workplace is what OSHA expects for compliance.
2) Unpreventable employee mis- conduct defense can still apply even when a supervisor participates in the misconduct—Federal and state OSHA agencies are increasingly arguing that employers cannot raise this defense when a supervisor is involved (either by violating the employer’s safety rule or by knowingly allowing the crew or employ- ees supervised to violate the safety rule). But this blanket attempt at eliminating the citation defense related to supervi- sors is contrary to the spirit, intent and case law factors establishing the defense.
The focus of the misconduct defense is not on the supervisory status of the employee, nor is it on the inspection day incident of employee noncompliance with a safety rule. Instead, the entire focus of this defense is on the employ- er’s safety program implementation. The four factors of proof of defense are:
1) Safety program work safety rule(s) that if followed would have prevented the violation or incident;
2) Training (on that work safety rule);
3) A system of monitoring (auditing) employees to detect safety rule viola- tions; and
4) Taking disciplinary action when safety rule violations by employees are discovered.
We recently obtained an order allow- ing this defense to be presented in a case where a supervisor and three crew employ- ees were working together and triggered a citation. The inspector observed and photographed their noncompliance. Here is how the assistant chief judge stated that the defense remains applicable:
“The proper focus in employee mis- conduct cases is on the effectiveness of the employer’s implementation of its safety program and not on whether the employee misconduct is that of a fore- man as opposed to an employee.”
3) OSHA industry targets—OSHA plans to inspect metal-stamping plants on an increasing basis under the NEP program. Reportedly, OSHA plans to inspect all metal-stamping plants in Ohio and Wisconsin this year. Current inspections focus on machine guarding (presses and press brakes), forklift oper- ator certification, use of hand tools to remove stuck or scrap parts, LOITO, and the use of safety blocks for in-the- die repairs or adjustments.
4) OSHA’s new form of acceptable settlement agreement nonadmission clause—OSHA has begun accepting the following form of nonadmission clause in formal settlement agreements:
“It is understood and agreed that this stipulation and settlement agreement will constitute a final order of the com- missioner for purposes of the act. Except for these proceedings and other subse- quent OSHA proceedings, none of the foregoing agreements, statements, find- ings and actions taken by respondent may be used in any other proceedings and may not be admissible as evidence in any such proceedings. By entering into this agreement, the employer does
YOU & THE LAW DOUGLAS B.M. EHLKE
38 METALFORMING / APRIL 2010
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