OSHA PENALTIES TO SHARPLY INCREASE

John M. Williams (williams@rwktlaw.com)

Penalties assessed by the Occupational Safety and Health Administration for workplace safety violations will increase sharply in the next few weeks. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires federal agencies to annually adjust their penalty assessments to reflect inflation under a new formulation designed to be simpler and more straightforward than the method currently used. The summer of 2016 has been designated as a “catch up” period during which the agencies are to adjust penalties to catch up with inflation since the last adjustment. This adjustment is based on the difference between the Consumer Price Index in October 2015 and the Consumer Price Index in October of the year in which the agency last adjusted its penalties. OSHA’s maximum penalties have not been increased since 1990; thus, OSHA penalties will significantly increase under the new rule. The interim final rule was published on July 1, 2016.

Overall, OSHA will see a 78% increase in penalties. The maximum for a serious violation will increase from $7,000.00 to $12,471.00. Wilful or repeated violations rise from $70,000.00 to $124,709.00. The new penalties apply to any assessment after August 1, 2016 arising from violations occurring after November 2, 2015.

Employers should be aware of these changes and be prepared to see much higher assessments. There is likely to be an increase in the number of contested penalties under the new structure. Alleged violations which may not have been economical to contest in the past will be more likely to end up in litigation.

The public comment period for the new rule runs through August 15, 2016.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC

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CELEBRATE THE FOURTH OF JULY–SAFELY!

John M. Williams (williams@rwktlaw.com)

It’s time again for the 4th July–parades, cookouts, ball games and, of course, fireworks.

When I was a child, my mother often told the cautionary tale of her cousin who lost his fingers (the number varied over time, ranging from a couple to ALL of them) handling fireworks. I never knew the cousin’s name or even if he actually existed. The point of the story, though, was clear: handle fireworks at your own risk. Poor Cousin X learned his lesson the hard way. As I got older, I learned that fireworks are only as safe as the person handling them. I paid little to heed to this, of course.

When I was in high school, my friends and I engaged in sport we called Car Wars. This consisted of driving around shooting bottle rockets at each other’s cars, primarily firing them from our hands. A “kill” was either a shot to the windshield or the more spectacular ordnance through an open window. Burnt hair, flash burns and the occasional eye injury were assumed risks. In other words, we violated every known safety rule. Oh, the fun we had. I do not recommend this as an activity for anyone.

In the summer of 2015, fireworks safety made national news when New York Giants defensive end Jason Pierre-Paul suffered a gruesome hand injury on the 4th July. (WARNING: DON’T LOOK AT ANY PHOTOS OF HIS INJURY UNLESS YOU HAVE A STRONG STOMACH). Pierre-Paul was lighting fireworks when an explosion severely damaged his right hand, jeopardizing his NFL career. Fortunately, Pierre-Paul returned to the field late in the season after multiple surgeries. Tampa Bay cornerback C.J. Wilson lost two fingers in a similar accident on the same day. He retired due to his injury.

We know there are dangers. What can we do?

With approach of the 4th of July, the Occupational Safety and Health Administration has posted a reminder to employers about employee safety handling fireworks. The video Fireworks Safety in Manufacturing and Retail Sales details applicable OSHA regulations and common safety precautions for manufacturing and sales.

Of course, few of us handle large fireworks displays. Most revelers are setting off fireworks in backyards or on streets (or in cars in my case). The American Pyrotechnics Association offers the following tips for safely handling fireworks:

  1. Obey all local laws–fireworks laws vary state-to-state.
  2. Know your fireworks–read instructions before lighting!
  3. A responsible adult should supervise.
  4. Do not drink or drug–celebrate after your show!
  5. Wear safety glasses.
  6. Light one firework at a time and move away quickly.
  7. Set off fireworks in an area away from buildings and vehicles.
  8. Never re-light a dud. Wait 20 minutes and toss it in a bucket of water.
  9. Have a bucket of water and a connected water hose handy.
  10. Don’t carry fireworks in your pocket or fire from a glass container.
  11. Do not use homemade fireworks.
  12. Dispose of spent fireworks in a bucket of water and metal trash can.
  13. Protect pets from fireworks–the noise can terrify many animals.
  14. Don’t point fireworks at people and keep a safe distance away.

While most of this is common sense advice, most of us won’t follow all these tips. The more precautions we take, however, the better off we’ll be. According to the United States Consumer Product  Safety Commission, an average of 230 people per day go to emergency rooms for fireworks injuries around the country during the months surrounding the 4th of July. With even minimal precautions, most of these trips could be avoided.

Jason Pierre-Paul now stars in a public service announcement for fireworks safety. The bottom line is that fireworks injuries are preventable. It’s true that some fireworks are defective. Many years ago, I represented a fireworks retailer in a products liability case. I quickly learned that the quality of fireworks varies wildly depending on the manufacturer. Nevertheless, while some injuries are caused by defective fireworks, most can be prevented by simple precautions.

After reading this, you may react like a childhood friend of mine. He always said that wherever children are laughing and having a good time, some adult is scheming to put an end to it. Remember: It’s all fun and games until someone blows off his hand. Jason Pierre-Paul, C.J. Wilson and my mother’s lamented cousin can attest to that.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

OSHA LEVIES $3.42 MILLION IN POTENTIAL PENALTIES AGAINST OHIO AUTO PARTS COMPANY

John M. Williams (williams@rwktlaw.com)

Sunfield, Inc., an auto parts manufacturer in Hebron, Ohio has been assessed $3,426,900.00 in penalties by the Occupational Safety and Health Administration for 57 alleged safety violations. Sunfield, Inc. is a subsidiary of Ideka Manufacturing Company LTD of Ota City in Japan. The Ohio plant is its only United States facility.

The violations are based upon the failure to de-energize equipment before performing maintenance work, thereby exposing workers to the risks of electrocution and other injuries from the movement of the equipment. OSHA cited the company’s extensive violation history as a major factor in the amount of the penalties assessed. These latest citations were found as a result of two serious accidents earlier in the year. Also, Sunfield has been placed in OSHA’s Severe Violator Enforcement Program.

OSHA describes this as “one of the largest OSHA penalties ever filed against a company in the automotive parts industry.” Sunfield has fifteen days to contest these citations.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

OSHA CITES ROOFING AND CONSTRUCTION COMPANIES FOR FALL HAZARDS

Noelle Holladay True (true@rwktlaw.com)

On April 18, 2016, the Occupational Safety and Health Administration (“OSHA”) issued multiple citations to Premier Roofing Company LLC (the controlling employer) and Walter Construction LTD (the subcontractor) alleging various violations related to fall hazards.  On December 21, 2015, OSHA investigated a complaint in Denver, Colorado about employees who were exposed to fall hazards as they were installing shingles on a three-story building.  Two days later, investigators returned to the site and found workers exposed to the same fall hazards.

Premier was issued two repeat violations, and five serious violations, and fined $90,860.  Walter was cited for seven serious violations and fined $16,800.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

2016 NATIONAL FALL PREVENTION STAND-DOWN

The Occupational Safety and Health Administration’s 3rd annual National Fall Prevention Stand-Down is May 2 – 6, 2016. This event raises awareness in the construction industry of preventing fall hazards. Data from the Bureau of Labor Statistics shows that 337 of the 874 construction-related fatal accidents in 2014 were the result of falls, making them the leading cause of work-related death in construction.

Fall protection violations are OSHA’s most frequently cited hazardous work conditions.  The Stand-Down is aimed at raising awareness of the need for more emphasis on curtailing these preventable accidents. The Stand-Down is part of OSHA’s Fall Prevention Campaign launched in 2012.

The Stand-Down is a voluntary program where employers take a work break to discuss fall hazard prevention. OSHA’s FAQ page provides details on how employers can participate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

MSHA HAS JURISDICTION OVER GARAGE – A MILE AWAY FROM QUARRY

Noelle Holladay True (true@rwktlaw.com)

In a recent decision under the Mine Act, an Administrative Law Judge extended jurisdiction to the Mine Safety and Health Administration (“MSHA”) over a garage used for equipment storage and repairs that is located a mile away from Brdaric Excavating Inc.’s Buck Mountain Quarry in Luzerne, Pennsylvania.  MSHA was initially denied entry by the owner, but later conducted an inspection of the garage and issued six citations.  The operator contested MSHA’s jurisdiction over the garage, but did not deny the violations.

The parties stipulated that at the time of the inspection, most of the equipment and vehicles stored at the garage were not used at the quarry, but were instead used on other non-mining-related job sites.  However, since some quarry equipment was stored and repaired at the garage, the judge held that it was a “facility used in mineral extraction and milling.”  The distance of one mile between the garage and the quarry was considered minimal and irrelevant.

The judge also held that the fact that the garage was under separate ownership from the quarry was not relevant to the issue of whether the garage qualifies as a “mine” under the Mine Act.  Finally, the company had fair notice of MSHA’s jurisdiction since the agency attempted to inspect the garage in 2008, and was told the company would no longer use the garage to repair any mining-related equipment.

Secretary v. Brdaric Excavating Inc., Case No. PENN 2012-313-M (Feb. 2016) (ALJ Lewis).

OSHA ANNOUNCES FINAL RULE ON SILICA DUST

John M. Williams (williams@rwktlaw.com)

The Occupational Safety and Health Administration has announced its final rule on respirable silica aimed at protecting American workers from harmful exposure to silica. Crystalline silica has been linked to lung cancer, chronic obstructive pulmonary disease and other serious health issues.

The final rule is a two-part regulation, one aimed at construction and the other at general industry and maritime. The rule calls for implementation of new engineering controls and a reduction in permissible exposure limits with staggered compliance dates. For more details, see OSHA’s website.

Employers should become familiar with the new requirements and prepare plans to meet the applicable compliance deadlines.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

OSHA FINES PILGRIM’S PRIDE AFTER ACCIDENT IN ALABAMA

Noelle Holladay True (true@rwktlaw.com)

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has issued citations to Pilgrim’s Pride Corp. following the agency’s investigation of a workplace accident that occurred at an Alabama poultry plant in September 2015.  The accident occurred when  a machine operator was attempting to reassemble a  chicken-part separating machine when it started unexpectedly, amputating part of his finger.

OSHA cited Pilgrim’s Pride with a “repeat violation”  for “failing to develop, document and train workers on the specific procedures to prevent machinery from starting up” while maintenance and service work is being performed, and issued a $70,000 penalty for this violation.  Pilgrim’s Pride was also issued a “serious violation” for a damaged 115 volt cable on the machine, and issued a $7,000 penalty.

Pilgrim’s Pride can request a conference with OSHA’s area director in Birmingham to contest these findings.

OSHA CITES HOME BUILDERS ALMOST $145,000

John M. Williams (williams@rwktlaw.com)

Under a Regional Emphasis Program (REP) issued by the Occupational Health and Safety Administration (OSHA) Region IV, OSHA inspectors are emphasizing fall protection in the construction industry. In a recent example of the REP’s effects, OSHA cited four contractors in a Florida subdivision for failing to provide adequate fall protection to employees. These Jacksonville contractors were cited for a total of $144,800 in proposed penalties.

OSHA stresses fall protection, recognizing that falls are a leading cause of work-related injury. Fall protection standards for the construction industry may be found here. State sponsored programs will have their own similar standards. 2010 statistics from the Bureau of Labor Statistics showed that 35% of the 751 construction-related fatalities were caused by falls. Employers must be aware of the safety standards and stress full compliance.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

MISBEHAVING SUPERVISORS–ARE EMPLOYERS LIABLE FOR THEIR CONDUCT UNDER OSHA?

Melanie Kilpatrick (kilpatrick@rwktlaw.com)

The United States Court of Appeals for the Eleventh Circuit recently issued a decision clarifying when a supervisor’s misconduct is sufficient to establish an employer’s knowledge of the misconduct for purposes of proving a violation of the Occupational Safety and Health Act (“OSHA”).

As part of his case, the Secretary of Labor must show that the employer “knowingly disregarded” OSHA’s requirements.  Ordinarily, if the Secretary can prove that a supervisor had knowledge of a subordinate employee’s violation, that knowledge is imputed to the employer.  However, when the supervisor himself is the one who engaged in the violative conduct, a majority of circuit courts have refused to impute the supervisor’s knowledge of his own misconduct to the employer.  The courts reason that if the Secretary were permitted to establish employer knowledge solely with proof of the supervisor’s misconduct, then the Secretary would not really have to establish knowledge at all.  The mere fact of the violation would satisfy the knowledge element.

In Quinlan v. Secretary of Labor (January 2016), the court was presented with the question of whether a supervisor’s knowledge of a subordinate employee’s violative conduct should be imputed to the employer when the supervisor is simultaneously involved in the same misconduct. In that case, the foreman and a subordinate were working on a concrete block wall and roof platform without fall protection.  The court found that the Secretary had established the foreman’s actual knowledge of the subordinate employee’s misconduct because the foreman was engaged in the misconduct with him.  The court recognized a distinction from a scenario based solely upon the supervisor’s knowledge of his own misconduct and decided to apply the general rule that the supervisor’s knowledge of the subordinate employee’s violation should be imputed to the employer.

Under Quinlan, although employer knowledge cannot be based solely upon proof of the supervisor’s misconduct, a supervisor’s  knowledge of misconduct can be imputed to the employer when the supervisor sees the violation and pitches in to work beside the subordinate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE 2016