TEN (IN)FREQUENTLY ASKED QUESTIONS ABOUT WORKPLACE SAFETY

John M. Williams (williams@rwktlaw.com)

Typically, lawyers only get questions after legal problems arise. What do I do now? What are my rights? How can I defend this? The best questions often go unasked. This isn’t to suggest that the best question is the most complex. The best are those that, if answered, prevent rather than minimize legal issues. Below are ten questions every employer should ask. If they aren’t frequently asked, they should be:

1. WHO IS IN CHARGE OF WORKPLACE SAFETY?
If you are an employer, the answer is YOU. Formal training increases safety; however, the culture of your business creates a safe work place. A culture stressing safety and accountability should influence all your practices. Every employee is responsible, too, but the standard is set at the top.

2. WHO POLICES THE EMPLOYER?
Under the Occupational Safety and Health Act of 1970, the United States Department of Labor—through the Occupational Safety and Health Administration (“OSHA”)–oversees workplace safety. States may develop their own safety programs which, if approved by OSHA, will shift this responsibility to the state. Currently, 26 states (including, the author’s home state of Kentucky) administer their own programs. Mining operations are governed by the Mine Safety and Health Act of 1977 through the federal Mine Safety and Health Administration. States may also have separate regulatory powers over mines.

3. IS MY BUSINESS COVERED BY OSHA?
Almost certainly. There are limited exceptions, including immediate family members of farm workers, self-employed workers and workers covered by another federal safety act (e.g., mining operations are covered by the Mine Safety and Health Act of 1977).

4. I’VE NEVER SEEN A SAFETY INSPECTOR. IS MY BUSINESS IN THE CLEAR?
No. Unless you are in a heavily regulated industry, you may rarely see an inspector. Do not allow this to lull you into inaction. First, safe work practices should take priority regardless of the law. Second, if a serious work place accident occurs, rest assured that your compliance (or lack thereof) with the law will be thoroughly examined. Third, and most importantly, workplace safety shouldn’t be driven by the presence (or lack thereof) of inspectors.

5. HOW DO I KNOW IF I’M IN COMPLIANCE WITH THE LAW?
Assuming you don’t find out from a government inspector, you should periodically audit your business to ensure compliance. Larger employers have safety personnel dedicated to compliance. For smaller businesses, outside auditors can be used to ensure compliance with current regulatory requirements.

6. HOW DO I TRAIN MY EMPLOYEES?
There are many available training resources. Private training companies are readily available as well as OSHA assistance. OSHA has a program dedicated to assisting small business, in particular. Consider implementing an Injury and Illness Prevention Program in your workplace.

7. WHAT IS AN ILLNESS AND INJURY PREVENTION PROGRAM?

It is a voluntary, employer-implemented safety program set up under OSHA guidance. An IIPP is designed to manage workplace safety with a program tailored to the employer’s business. In some states, such as California, an IIPP is required by law.

An IIPP is a detailed safety manual covering hazard communications, accident reporting and response, emergency actions, safety inspections, record-keeping and other safety requirements. Refer to OSHA or your state’s safety program for details. All employees should be familiar with the IIPP. Periodic review and update is essential, too.

8. AREN’T THESE GOVERNMENT FINES JUST THE COST OF DOING BUSINESS?
No. The goal should be no penalties. In industries like mining, inspections are so frequent and regulations so detailed that zero citations may be difficult to achieve. Regardless, best practices require a goal of no violations. A baseline of “some” violations may contribute to a culture where safety is lax. Moreover, civil penalties can be substantial, perhaps far beyond what one would consider a cost of doing business.

9. WHEN SHOULD I HIRE A LAWYER?
We lawyers might be inclined to answer: “TODAY!” In truth, you likely do not need a lawyer for your day-to-day safety compliance. The vast majority of interaction with regulators will be non-adversarial. There is no need to filter everything through a lawyer. Nevertheless, there are times when a lawyer should be retained:

Large proposed penalties: What is considered “large” is relative to the size of the employer. While this is a bit of judgment call, always consult attorney if the penalty is such that it will cause serious financial strain.
Serious violations: When faced with a serious safety violation, the employer should contact a lawyer early in the process. Remember: A proposed penalty is just that—proposed. You have the right to defend yourself.
Litigation: In most administrative law courts, employers may represent themselves. Cost savings make this tempting. Actual litigation (depositions, court appearances, etc.) should be handled by an attorney.

10. SHOULD I JUST FIGHT EVERYTHING?
No. This is known as the Scorched Earth Philosophy. This employer/philosopher has concluded that it will battle the “Government” on everything. This is never a good approach for (at least) three reasons:

First, the Government has more resources and time than you do. It can do battle with you as long as necessary, while you spend your work time and resources (attorneys’ fees and expenses) fighting losing causes.

Second, not everything is defensible. Many violations are valid. If you receive a well-founded safety violation, your resources are better spent correcting the violation and ensuring that it doesn’t happen again.

Third, it sends the wrong (or maybe the correct) message. Does the employer put more emphasis on fighting or on safety? If you contest everything, soon your credibility becomes an issue. The Government is made up on individuals, just like your business. Those people are human, too, and make judgments. If an employer gets a reputation of being an obstructionist, nothing will go smoothly.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

STUDENT ATHLETES CRY “FOUL” UNDER FLSA

Melanie Kilpatrick (kilpatrick@rwktlaw.com)

On Tuesday, a decision was issued by the U.S. District Court finding that student athletes who play on NCAA teams are not “employees” entitled to minimum wage payments under the Fair Labor Standards Act (“FLSA”).  At first glance, it might seem that this decision does not impact typical employer-employee relations, but it serves as a reminder that it can be easy to run afoul of the federal wage-and-hour provisions when hosting unpaid internships.

In Berger v. NCAA, the student athletes alleged that they were employees under the test set forth in a 2010 Department of Labor “fact sheet” for determining whether internships qualify as employment under the FLSA.  The court refused to follow the Department of Labor’s test for determining whether an intern is an employee.  Instead, it approved of the following factors when analyzing whether a trainee is an employee:

  • Do the intern and the employer both clearly understand that there is no expectation of compensation?
  • Is the training provided similar to that which would be given in an educational environment?
  • Is the internship tied to a formal education program by coursework or receipt of academic credit?
  • Does the program correspond with the intern’s academic calendar?
  • Is the duration of the internship limited to the period in which the internship provides the intern with beneficial learning?
  • Does the intern’s work complement, rather than displace, work being done by paid employees?
  • Is there an understanding that the intern is not entitled to a paid job at the conclusion of the internship?

The court held that even these factors failed to capture the nature of the relationship between student athletes and their universities.  Placing significance on the educational experience provided by the universities and the fact that students vie for the opportunity to play college sports with no thought of being paid wages, the court concluded that the students’ participation on NCAA athletic teams did not make them employees for FLSA purposes.

Employers should keep the above factors in mind when determining whether internships can legally be “unpaid,” or whether interns must be paid minimum wages for the experience they receive.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

WHAT BRINGS OSHA TO YOUR DOORSTEP?

Noelle Holladay True (true@rwktlaw.com)

The Occupational Safety and Health Administration (“OSHA”) has jurisdiction over more than 100 million workplaces.  Since OSHA cannot possibly inspect all of these workplaces, it has established a system of inspection priorities for itself.  The following are  situations which trigger an OSHA inspection, listed in order of the priority that OSHA places upon each category:

  1. Imminent Danger Situations.  If there is a situation with a reasonable certainty to cause imminent death or serious physical harm, OSHA will step in immediately.  These situations take top priority.  OSHA will ask the employer to voluntarily abate the hazard, and if the employer refuses or fails to do that, OSHA may seek an injunction prohibiting further work until the dangerous conditions are removed.
  2. Accidents and Fatalities.  If a fatality or accident (resulting in the hospitalization of three or more employees) occurs, OSHA will investigate to determine the cause and to see if any OSHA standards were violated.
  3. Complaints.  The Occupational Safety and Health Act of 1970 gives employees the right to request an OSHA inspection if there is a belief of imminent danger from a hazard, or a belief that an OSHA violation that could result in physical harm.  If such a complaint is made, OSHA will keep the complaint confidential and will inform the employee of any resulting action it takes.
  4. Programmed Inspections.  Next in priority are planned inspections of selected high-risk industries on the basis of such factors such as injury rates, citation history, and toxic exposure.  OSHA may also include random selection as a part of its inspection program.
  5. Follow-up Inspections.  If an employer has been previously cited, OSHA will come back to inspect and determine if the violation has been abated.

These are OSHA’s list of priorities.  But the safest bet is to keep a clean house, and always be prepared for OSHA to arrive at your door.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

SUPREME COURT HALTS OBAMA CLEAN POWER PLAN

John M. Williams (williams@rwktlaw.com)

The United States Supreme Court has issued a stay putting on hold the Obama Administration’s Clean Power Plan promulgated by the Environmental Protection Agency. Enforcement of the rule is stayed at least until the United States Court of Appeals for the District of Columbia rules on a challenge to the rule later this year. The challenge was brought by a group of states, utilities and coal operators. If the rule is upheld, the stay would likely remain in place while review before the Supreme Court is sought.

This is not a ruling by the Court on the merits of the challenge to the rule. Rather, the Court has ordered that the rule be put on hold until the court challenges are decided. The practical effect is that the EPA will not be able to enforce the September 6 deadline given states to submit their emissions-reduction plans for approval. The stay does, however, indicate the Court may be skeptical of the government’s prospects of prevailing on the merits.

The Court’s four liberal justices–Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan–dissented from the Court’s ruling.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

MSHA IMPLEMENTS PHASE II OF DUST RULE

John M. Williams (williams@rwktlaw.com)

On February 1, 2016, Phase II of the Mine Safety and Health Administration’s respirable dust regulations took effect. Underground coal miners will now wear Continuous Personal Dust Monitors to provide real time analysis of exposure to respirable dust. The goal is to use this real time monitoring to immediately address excessive exposure to coal dust. Operators must also post the results of this sampling within 12 hours of the sampled shift. Any miner who has shown evidence of black lung disease (coal worker’s pneumoconiosis) must be given the sample results within an hour of the start of his or her next work shift.

Phase II comes on the heels of the January 25, 2016 decision by the United States Court of Appeals for the 11th Circuit upholding the new dust rule against a challenge by various trade groups and operators. National Mining Association, et al. vs. Secretary, U.S. Department of Labor, Mine Safety and Health Administration, Case No. 14-11942. Full text of this opinion made be found on the Court’s website.

The third phase of the dust rule takes effect on August 1, 2016. It lowers the dust standard from 2.0 milligrams per cubic meter of air measured over a shift to 2.0 milligrams.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

REMINDER: OSHA INJURY AND ILLNESS POSTINGS

John M. Williams (williams@rwktlaw.com)

OSHA has issued its annual reminder for employers to post a copy of their OSHA Form 300A summarizing job-related injuries and illnesses in 2015. The notice must be posted in a common area between February 1 and April 30. For more information on the record keeping rule, including exemptions, see the OSHA website.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

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