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

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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 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.

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

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