• 04/30/2018 – OSHA Trade Release – U.S. Department of Labor Fixes Error Dating to 2016 Implementation of “Improve Tracking of Workplace Injuries and Illnesses” Regulation
  • 04/27/2018 – OSHA Trade Release – Statement by Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt on Workers’ Memorial Day 2018
  • 04/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Association of Energy Service Companies Renew Alliance to Keep Texas Oil and Gas Employees Safe
  • 04/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Florida Roofing Contractor Settle Lawsuit on Whistleblower Allegations
  • 04/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor, Georgia Tech, and Georgia Department Of Public Health Form Alliance to Reduce Lead Exposure
  • 04/23/2018 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Penalties for Farm Supply Company For Operating Damaged Forklift at its Ohio Facility
  • 04/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Company, Proposes $261,454 in Penalties for Workplace Safety Hazards
  • 04/20/2018 – Region 9 OSHA News Release – U.S. Department of Labor Orders California Company to Pay $110,000 To Manager Who Reported Concerns Regarding E-Cigarette Ingredients
  • 04/17/2018 – OSHA Trade Release – OSHA Flier Offers Steps to Keep Tractor Trailer Drivers Safe at Destination
  • 04/17/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Company For Exposing Employees to Trenching Hazards
  • 04/17/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractor for Exposing Workers to Trenching, Other Safety Hazards on North Dakota Municipal Project

 

  • 03/28/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders Reinstatement of Massachusetts Pilot Who Lost Job after Reporting a Safety Concern
  • 03/27/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor for Fall Hazards at New Hampshire Work Site
  • 03/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Communication Tower Contractor Following Three Fatalities at Miami Work Site
  • 03/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor For Exposing Employees to Fall Hazards, Proposes Penalties
  • 03/16/2018 – Region 2 OSHA News Release – U.S. Department of Labor Proposes Penalties for Waterloo, New York, Dairy Producer for Failing to Correct Hazards
  • 03/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Company After Employee Suffers Fatal Heat-Related Injury
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Auto Parts Manufacturer Reach Settlement Agreement, Including $1 Million Penalty
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Kraft Heinz Food After Employee Injured by Machine, Proposes Penalties
  • 03/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Egg Processing Facility After Employee Fatally Injured
  • 03/15/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders JetBlue to Reinstate and Pay Back Wages and Damages to Flight Attendant
  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility

In the “better late than “never” category, OSHA announced today that it will still accept 300A annual summary injury data for calendar year 2016 through OSHA’s on-line Injury Tracking Application (ITA) (https://www.osha.gov/injuryreporting/index.html) until midnight on December 31, 2017.  If submitted by then, but after the official December 15th deadline, OSHA announced that no enforcement action would be taken.

Additional details are in the OSHA announcement linked here

  • 11/29/2017 – Region 3 OSHA News Release – U.S. Department of Labor Fines US Environmental Inc. for Safety Violations and Proposes Penalties Totaling $333,756
  • 11/28/2017 – Region 6 OSHA News Release – U.S. Department of Labor and Pottery Manufacturer Reach Settlement Agreement Following Worker Fatality
  • 11/22/2017 – OSHA National News Release – U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017
  • 11/17/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Tampa Electric Co. And Critical Intervention Services Following Hazardous Chemical Release
  • 11/17/2017 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Over $1.8 Million in Fines Against a Wisconsin Corn Milling Facility After Fatal Grain Dust Explosion
  • 11/09/2017 – OSHA Trade Release – OSHA Issues Final Rule Setting Compliance Date for Crane Operator Certification Requirements
  • 11/09/2017 – Region 1 OSHA News Release – U.S. Department of Labor Cites Lynnway Auto Auction For Exposing Employees to Numerous Hazards
  • 11/09/2017 – Region 2 OSHA News Release – U.S. Department of Labor Again Cites Three Queens Supermarkets For Safety Violations
  • 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Bimbo Bakeries USA For Multiple Workplace Hazards
  • 11/08/2017 – Region 7 OSHA News Release – U.S. Department of Labor Cites Farmers Cooperative After Worker Entrapped in Grain Bin
  • 11/08/2017 – Region 7 OSHA News Release – Missouri Podiatry Clinic Cited for Improper Handling of Medical Waste
  • 11/08/2017 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractors in Montana Following Severe Burns
  • 11/07/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Parts Manufacturer After Injuries Reveal Hazards
  • 11/07/2017 – Region 4 OSHA News Release – U.S. Department of Labor Resumes Regular Enforcement in Florida and Georgia
  • 11/02/2017 – OSHA Trade Release – U.S. Department of Labor Signs Alliance with Robotic Industries Association and NIOSH to Improve Worker Protections in Emerging Tech Industry
  • 11/01/2017 – Region 4 OSHA News Release – U.S. Department of Labor Cites Mississippi Company for Exposing Workers To Hazardous Energy, Equipment, and Other Hazards
  • 11/01/2017 – Region 10 OSHA News Release – U.S. Department of Labor Cites Boise Construction Company For Trenching Violations

 

In late October, President Trump nominated FedEx Ground official, Scott Mugno, as OSHA Director. Many critics of this Administration will be surprised to learn that Mr. Mugno appears to have an open mind and is not planning on dismantling the agency. Mugno has earned significant praise for his work at FedEx where he served as the vice president for safety, sustainability and vehicle maintenance and received the company’s highest honor, the FedEx Five Star Award, for his safety work. Administrator Mugno’s approach will likely be more business-friendly through a focus on compliance assistance measures versus aggressive enforcement or new regulations. But focusing on compliance assistance is a far cry from a free pass. While Mr. Mugno’s experience will help him appreciate the compliance challenges faced by the regulated community, his experience will also help him recognize which bad actors are phoning it in on worker safety.

 

 

Written with assistance from Ana Ramirez.

On September 26th, OSHA announced that citations for 9 out of the 10 most frequently cited standards noticeably declined since fiscal 2016. According to OSHA data, preliminary violation[1] numbers from last fiscal year dropped following years of declining total inspection numbers.  Deputy Director of the OSHA enforcement branch, Patrick Kapust, particularly noted the steep decline in fall protection citations.  Kapust also mentioned that construction fall-related violations, such as ladders, scaffolding, and training,  remain the most commonly cited, and that construction sites account for close to half of OSHA’s inspections. For your reference, here is the list of preliminary top 10 most-cited violations for fiscal 2017:

  1. Fall protection at 6,072 (down from 6,929 preliminary violations in fiscal 2016)
  2. Hazard communication at 4,176 (down from 5,677 preliminary violations in fiscal 2016)
  3. Scaffolding at 3,288 (down from 3,906 preliminary violations in fiscal 2016)
  4. Respiratory protection at 3,097 ( down from 3,585 preliminary violations in fiscal 2016)
  5. Lockout/tagout at 2,877 (down from 3,414 preliminary violations in fiscal 2016)
  6. Ladders at 2,241 (down from 2,639 preliminary violations in fiscal 2016)
  7. Powered industrial trucks at 2,162 (down from 2,860 preliminary violations in fiscal 2016)
  8. Machine guarding at 1,933 (down from 2,451 preliminary violations in fiscal 2016)
  9. Fall protection training at 1,523
  10. Electrical wiring methods at 1,405 (down from 1,940 preliminary violations in fiscal 2016)

 

 

 

 

Written with assistance from Ana Ramirez

[1] The violation numbers are preliminary because OSHA inspectors have up to six months following an inspection to issue citations.

Interested in providing input on the OSHA’s Voluntary Protection Programs (“VPP”)?  The next and final in-person meeting is scheduled for August 28, 2017. If you happen to miss it, worry not, OSHA will accept public comments through September 15, 2017. Here are a few areas OSHA is brainstorming: overall VPP process and flow; corporate/long-term participant involvement; and Special Government Employee activities.

 

The Occupational Safety and Health Administration (“OSHA”) remains Administrator-less seven months into President Trump’s administration with the recent retirement of the former acting assistant secretary, Dorothy Dougherty, and the absence of a nomination from the White House. Despite the power vacuum, OSHA has been forced to remain active on regulations and standards teed up by the outgoing administration and targeted for revision or rescission by opponents of the prior administration’s actions.  These actions include changing the scope of the beryllium standard, delaying the effective date of the injury and illness rule, and signing off on a Congressional vote overturning the Volks rule (which would have rendered meaningless the statute of limitations for recordkeeping violations).

While we are not surprised that even a rudderless OSHA is managing to tick off a few of the Trump Administration’s key agenda items, what about the rest of the stuff OSHA does?    What do the majority of the 2000+ OSHA employees do under a new President and after seven months without a boss?   According to Mark Konkel (our labor law expert in NY and all around good dude), most OSHA employees are probably still working on what they have always been working on.   “ . . .day to day, a giant administrative bureaucracy with thousands of employee is running—meaning that policy momentum will guide what they do in the absence of new top-down direction under the Trump administration.”  He also notes that “this may have the effect of extending Obama-era policy direction, because there’s nothing new to interrupt the old direction.”  Mark is as wise as he is handsome – and that’s why we hate him…

So what is with the delay in naming a new OSHA Administrator?   Maybe nothing.   President Barack Obama did not appoint an OSHA Administrator (Dr. David Michaels) until late July of his first term and President George W. Bush waited mid-September of his first term to appoint Edwin Foulke.  Given the general slow pace of nominations on other agencies and the fact that President Trump was compelled to “do over” his nomination for Secretary of Labor, we wouldn’t be too surprised to see this nomination delayed well into the fall.  

Guesses on who it will be?   Our NSFW rumor mills have heard mention of Tom Galassi (head of the agency’s enforcement directorate), Scott Mugno (vice president of safety, sustainability and vehicle maintenance at FedEx Ground), and James Thornton (safety director at shipbuilder Huntington Ingalls Industries in Norfolk, VA).  Any guesses from our tens of devoted NSFW readers?   (Hi Mom!)  

 

Labor Secretary Acosta has dubbed Wayne Palmer his new Chief of Staff. Following Acosta, Palmer is the first major political hire at the Department of Labor (“DOL”). Palmer’s considerable experience in Washington includes holding a senior position at the Center for Presidential Transition and his tenure as Chief of Staff to former Senator Rick Santorum. More recently, Palmer served as a temporary political official in the Trump administration. As Chief of Staff, Palmer will have significant influence within the DOL. His ability to oversee managerial operations, and facilitate the Secretary’s stakeholder outreach will allow him the opportunity to push policy and enable the DOL agenda. 

 

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Day Blogs.

In the era of the ever-present cell phone, where many people seem to video and record (and then post to social media) virtually everything that goes on in their lives, employers have tried to limit such activity in the workplace with blanket “no recording” policies. These were just dealt a blow last week, when the Second Circuit affirmed a decision by the NLRB, which held that very broad  no-recording policies do violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). See Whole Foods Market Group Inc. v. NLRB, 16-0002 (2d Cir. June 1, 2017).

  • Are all such policies now unlawful?  NO.
  • What should employers do?  Read on. Employers now need to go back and review their policies and, if it can be justified, create a tailored policy designed to protect information that deserves protection, but is not so broad that it can be seen as curbing employee’s rights to organize and bargain collectively.

Background

The employer in the case, national retailer Whole Foods, had a policy that prohibited any sort of recordings of staff meetings or other workplace conversations, without prior supervisor approval or the consent of all involved. In its staff manual, Whole Foods stated that the purpose in having this prohibition is “to eliminate a chilling effect on the expression of views” when people fear that they may be secretly recorded. This rationale was rejected.

The NLRB had found that Whole Foods’ policy violated the National Labor Relations Act, because it could be “reasonably construed” to discourage employees from exercising their rights under the Act to engage in “concerted activities,” in order to further their interest in “mutual aid or protection,” known as the Lutheran Heritage test. Under this test, a policy is unlawful if employees can “reasonably construe” the policy as discouraging them from exercising the rights protected by the NLRA.  The Board has found in prior cases that policies prohibiting employee recording and photographing of picketing, unsafe working conditions, or other perceived unequal treatment were unlawful.

Notably, the Second Circuit observed in the decision that the defendant did not try to challenge the Lutheran test.

The Board and the Second Circuit held that the fatal flaw in Whole Foods’ policy was its breadth – that it banned ALL employee recordings, of any type, absent supervisor approval.

Neither the NLRB nor the Second Circuit was persuaded by Whole Foods’ argument that the policy helps to foster the open dialogue between staff members that it considers a cornerstone of its company culture. The Second Circuit found that, in the absence of any evidence of “weighty” countervailing interests in protecting the confidentiality of information, like protecting patients’ privacy rights. Whole Foods’ no-recording policy was overbroad and unlawful. Continue Reading Are We Being Taped? – The Second Circuit Weighs in on Workplace Taping