Agc Ga Superintendents Breakfast

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work® www.laborlawyers.com ● Phone (404) 231-1400

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Presented by:

Howard A. [email protected]: (404) 231-1400

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SUPERINTENDENTS BREAKFAST“Managing Jobs In Uncertain Legal Times”

MARCH 26, 2010




AVOID THIS AT ALL COST!




BUT ALSO AVOID THIS REACTION!BUT ALSO AVOID THIS REACTION!




THE ADMINISTRATION’S OWN DESCRIPTION OF ITS FOCUS

• Secretary of Labor Hilda Solis:“Let me be clear, the Labor Department is back in the enforcement business.”

April 28, 2009 “Workers Memorial Day” Speech

• Assistant Secretary of Labor David Michaels:“There is a new sheriff in town . . . this is not an abstract wish . . . it is a stern description of how OSHA is now working . . . and I take this phrase seriously.”

March 10, 2011, ABA




1. BP Products North America, Inc. (TX) - $87 million2. CES Environmental Services, Inc. (TX) – $1.4 million3. Cambridge Contracting, Inc. (NY) - $484,000 – Nov.4. Franklin Non-Ferrous Foundry (NH) - $250,0005. Endres Processing Ohio, LLC (OH) - $473,0006. Mar-Jac Poultry, Inc. (GA) - $379,8007. Sims Bark Co & Sims Stone Co. (GA & AL) – $576,000 8. Tempel Grain Elevators, LLC (CO) - $$1.59 million9. Frit Car, Inc. (AL) - $364,35010. Cranesville Aggregate Co. (NY) - $509,00011. Loren Cook Co. (MO) - $511,00012. UCL, Inc. (OH) - $321,00013. C.A. Franc (PA) - $539,000 and criminal referral14. A-I Excavating (W) - $861,000

THE PROOF IS IN THE PENALTIES




15. Diesel, Inc. (FL) - $318,90016. All-Feed Processing & Packaging, Inc. (IL) - $518,52017. A-1 Excavating (WI) - $861,00018. Cambria Contracting, Inc. (NY) - $484,00019. Metal Improvement Co. (IL) - $275,00020. New Place Carpentry (CT) - $308,50021. Crespac, Inc. (GA) - $266,40022. Heberle Disposal Service, Inc. (NY) - $304,20023. Cranesville Aggregate Co. (NY) - $509,000 – Nov.

THE PROOF IS IN THE PENALTIES




WHAT ARE THE GUYS IN D.C. UP TO?

• The Administration has been candid about their workplace safety enforcement focus – take them at their word. It is not political posturing.

• Surprise! Larger penalties!– already risen 20% per serious item since Mr. Barab complained about the

average serious penalty amount.• There were as many egregious citations in the first quarter of 2009 as all

of last year;• inspections have not yet increased, but “inspections found in compliance”

have declined; • quiet but efficient OSHA working groups focusing on issues from raising

penalties without passage of the PAW to recordkeeping;• efforts to focus on larger multi-location employers, and to determine

“patterns,” possibly triggering willful, repeat, or item-by-item classification, or placement in EEP-type programs.





• Getting CSHO’s, IH’s, and Whistleblower in the field through new hires and reassignment of consultation officers.

• More follow-up’s; especially focusing on abatement• More General Duty Citations (including ergonomics) and 1926.20

and 21 citations.

• Continued growth in whistleblower claims and changes in the law and OSHA’s Directives (17 laws).

• Focus on “Green Jobs,” ARRA and Stimulus jobs (1900+ ARRA inspections in 2009).

• Focus on Chemical and IH Issues.





• Change in tone – see the www.OSHA.gov weekly list of catastrophic injuries with employer identifiers, and ongoing efforts to make other employer information public:

“Regulation by Shaming is very effective. . . .”

Dr. David Michaels





• Focus on recordkeeping enforcement and changes in how injury and illness data is viewed and utilized;

– reasons for the Recordkeeping NEP– Oct. 1, 2009 Directive – focus on employers in

high hazard industries who have low rates– proposed requirement to record MSDS’s and

reliance on “subjective symptoms”





• Review of all State Plans and “restructuring” the Operation of Federal and State OSHA programs.

– State Plan “Reviews” due June 2010

– Pressure on State Plans to follow D.C. direction, NEP’s, etc.

– HR 4864 introduced on March 16, 2010 to give Fed-OSHA more control over State-Plans

– More coordination between Fed offices





OSHA INTERPRETATIONS

• Hi-Viz clothing required safety attire for highway and road construction workers

• http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27155

• Published Aug. 25, 2009• Construction fall protection rules do not apply to vehicles• Published March 16, 2009





OSHA GUIDANCE

• ‘New’ guidance on controlling silica exposures in construction

• http://www.osha.gov/Publications/3362silica-exposures.pdf

• ‘New’ guidance and training materials on scaffolding

• http://www.osha.gov/dte/library/scaffolds/scaffolding/index.html





• Efforts to jumpstart rule-making, but continued focus on other ways around aging standards and the slow rulemaking progress.

• Reviving the Protecting American Workers Act (PAW) – March 16, 2010 Hearing – new revisions proposed, including changes in proposed penalties, widening of definition of “any responsible corporate officer” and related changes to criminal standard from a “willful” to a “knowing” violation leading to a serious injury or death; also accelerated abatement provisions.





PROTECTING AMERICA’S WORKERS ACT(PAWA, HR 2067 / S 1580) (some of the changes)

Would Increase Civil Penalties (will be adjusted for inflation every 4 years):

• Willful or repeat (no fatality): $8000 →$120,000 (now = $5000→$70,000)

• Willful violation w/fatality (new): $50,000→$250,000• Serious violation (no fatality): $12,000 (now = $7000)• Serious violation w/fatality (new) $20,000→$50,000• Non-serious violation (no fatality): $12,000 (max.) (now = $7000)• Non-serious violation w/fatality (new): $20,000→$50,000• Failure to correct (no fatality): $12,000 (now = $7000) (?)• Failure to correct w/fatality (new): $20,000→$50,000 (?)





PROTECTING AMERICA’S WORKERS ACT(PAWA, HR 2067 / S 1580) (some of the changes)

Would Expand Victim’s Rights:• Allows employees (or their representatives) to contest OSHA

citations re: failure to issue, classification and proposed penalty• Includes injured workers and families in the OSHA investigatory

and adjudicatory process• Permits employees to object to modification or withdrawal of

citation and ultimately to a hearing before the OSHRC




TAKE AWAYS

• Do not overreact, but also do not be lulled into thinking “things are the same.”

• Expect continuing increases in OSHA enforcement efforts and the resulting legal exposure.

• Understand a supervisor’s “legal” role in maintaining safety and preventing OSHA citations.

• Recognize the importance of consistent enforcement of safety rules and training.




TAKE AWAYS

• To make out a federal OSHA citation, OSHA must prove that a hazard existed, that an employee was exposed, and that the employer knew of a violation or, having exercised reasonable diligence, could have known of a non-compliant condition.

• In order to prove that an employer should have known of a violation with the exercise of reasonable diligence, OSHA must show that the employer could have discovered the violative condition with the exercise of reasonable diligence.

• Whether a supervisor was reasonably diligent includes: maintaining adequate work rules including safety programs, adequately supervising employees, inspecting the workplace, anticipating hazards to which employees may be exposed, and taking measures to prevent the occurrence of violations.




TAKE AWAYS

• Consistent discipline is essential, especially if you want to use the unpreventable employee Misconduct.

– Establish work rules designed to ensure safe work and to avoid OSHA violations;

– Communicate the work rules to employees;

– Train the employees as needed;

– Take appropriate steps to discover violations;

– Effectively enforce the rules and practices when violations are discovered; and

– Document the above actions.

• As you discipline, always focus on the actions, conduct, and attitude and not on injuries, health conditions, insurance usage, workers compensation or other legal claims or “complaint,” in order to avoid ADA/FMLA/workers comp retaliation claims.




TAKE AWAYS

• Properly document discipline, corrections, and required training.

• Use pre-work planning, safety meetings, and inspections to eliminate hazards, show due diligence, and establish a “lack of notice of hazards.”

• Get recordkeeping perfect – avoid both over- and under-reporting; address “coordination.”

• Do not solely rely on injury and illness rates to monitor safety management success.

• Revise Procedures to manage OSHA inspections under a new Administration.




TAKE AWAYS

• Focus on the “details:” “Routine” construction and general industry violations, and up-to-date documented training, testing, and other periodic requirements;

• Respond to Region IV and national construction related emphasis programs;

– There are at least 140 local emphasis programs

– Recognize that general duty NEP’s also affect construction




TAKE AWAYS

• Continue with VPP, Alliances, and other cooperative efforts or find alternatives;

• Consider the effects of an aging and increasingly unhealthy workforce, especially in light of the MSD focus, GINA, and the ADA revisions;

• Reconsider how to respond to even small OSHA citations, especially if you are a multi-location employer;

• Self audit your jobsites, S&HM program, past violations, and seek “patterns.”




WHAT DO WE LEARN FROM THESERECENT OSHA PRESS RELEASES?

• BP – Husky Refinery (3/8) $3,000,000 penalties (following 2009 $87,000,000 in Texas City Refinery “follow-up”)

• Contempt Order against Andre Tuckpointing and Brickwork (AT&B) for “ignoring” citations (2/11)– OSHA cites C.A. Franc $599,000 for willful fall

protection violations following worker’s death and owner pleads to criminal charges

– Recent criminal action against Company personnel in NYC crane collapse and in World Trade Center building case





• Broadway Concrete (2/19) agrees to pay $750,000 and take comprehensive jobsite safety steps, including:– Select and employ a full-time chief of construction operations

and a corporate safety director to oversee construction operations and have authority over senior job superintendents in safety and health related issues.

– Employ a full-time site safety director on each large project and have a safety director inspect smaller projects at least once a week; the safety directors will have authority to stop work and direct changes to ensure site safety.

– Reduce the salary of senior job superintendents who fail to comply with applicable OSHA and job safety practices.





– Complete a comprehensive review of current construction means, methods and safety procedures, including a crew-based, task specific hazard assessment for every phase of current construction operations.

– Develop a new corporate safety and health plan.

– Finalize a site specific safety and health plan for each new project before work begins, ensure the job superintendent reads it and provides copies to onsite employees.

– Provide safety and health management training to superintendents and supervisory personnel working on each site, and train company and subcontractor employees on each site’s safety and health plan.

– Provide OSHA officials with information on major projects and access to all jobsites without need of a warrant for the next four years.




HOWARD A. MAVITYFISHER & PHILLIPS LLP

[email protected](404) 231-1400

Fisher & Phillips LLPis dedicated exclusively to representing employers

in the practice of employment, labor, benefits, OSHA, and immigration law and related

litigation.

THESE MATERIALS AND THE INFORMATION PROVIDED DURING THE PROGRAM SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS CRITICAL OF THE CURRENT OR PAST ADMINISTRATIONS. NOR SHOULD THESE MATERIALS

BE VIEWED AS CRITICAL OF THE CAREER CIVIL SERVANTS WHO MAKE OSHA WORK.

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Agc Ga Superintendents Breakfast