MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register. The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards. The current rule allows operators to examine mines during a shift. MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4). Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.
Seyfarth Synopsis: The Supreme Court decided that Army Corps’ jurisdictional determinations are judicially reviewable. This decision leaves open the question of whether other types of administrative decisions are immediately judicially reviewable.
In a significant victory for owners of private property, the Supreme Court of the United States (SCOTUS) decided this week that an Army Corps of Engineers (Corps) jurisdictional determination (JD) is a final agency action judicially reviewable under the Administrative Procedure Act (APA). U.S. Army Corps of Engineers v. Hawkes Co., Inc., et al., No. 15-290, 578 U.S. ____ (May 31, 2016).
The issue presented was whether a so-called “approved” jurisdictional determination — the government’s determination that a wetland is regulated under the Clean Water Act (CWA) thereby requiring a permit to dredge or fill — is immediately reviewable. The Hawkes decision builds on the holding of Sackett v. EPA, 132 S. Ct. 1367 (2012) (see our earlier blog on the Sackett decision) where SCOTUS concluded that an EPA compliance order issued under the CWA requiring that a developer cease its filling activity of an allegedly regulated wetland was judicially reviewable. SCOTUS rejected the Government’s contention that the landowner has to await EPA’s judicial enforcement of that order.
Following Sackett, the Circuit Courts of Appeal have split as to whether a landowner receiving a JD finding the wetland to be CWA-regulated is final and reviewable — with the Eighth Circuit holding yes, and the Fifth Circuit holding no.
In Hawkes, the plaintiffs sought to mine peat from wetland property. The Corps upset that plan when it issued an approved JD that the property constituted “waters of the United States” (WOTUS), requiring the plaintiffs to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Approved JDs present a definitive statement that waters of the United States are, or are not, present. The Corps also issues “preliminary” JDs that only tell a landowner that waters of the United States “may” be present. Preliminary JDs were not at issue in this case. An approved JD is binding upon the Corps and EPA. For example, where the JD concludes that a CWA-regulated wetland is not involved, it provides the landowner with a “safe-harbor” for five years, under which it is free to develop its property without need to obtain a permit. For this reason, SCOTUS concluded that the JD affects the plaintiffs’ rights and obligations and has legal consequences, making it reviewable.
This SCOTUS determination could have heightened importance in the context of the EPA’s and the Corps’ recent release of the Final Clean Water Rule: Definition of “Waters of the United States.” We blogged about this new rule when it was published. The new WOTUS rule will substantially increase the number of potential wetlands, making a challenge to the Corps’ Jurisdictional Determinations more likely now that SCOTUS has decided that they are judicially reviewable.
The Hawkes decision also leaves open questions of whether other types of administrative decisions are immediately judicially reviewable. In a related Law360 Expert Analysis (Water Case Shows Justices Warm To Review Of Fed. Agencies), Andy Perellis notes that “there is potentially a universe of agency actions such as guidance documents or opinion letters that in the past have evaded judicial review that may be reviewable because those agency determinations have immediate consequences.”
Seyfarth Synopsis: The Eighth Circuit found that a class action could not be sustained in an environmental pollution case because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.”
In Karl Ebert v. General Mills, Inc., No. 15-1735 (8th Cir. May 20, 2016), the United States Court of Appeals for the Eighth Circuit found that the District Court erred in certifying a proposed class of plaintiffs in an environmental pollution case because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded for further proceedings at the District Court.
In this its appeal to the Eighth Circuit, General Mills, Inc., challenged the District Court’s grant of class certification because each plaintiff will need to prove individualized issues of injury, causation, and damages.
In the underlying litigation the plaintiffs, all owners of residential properties in a Minneapolis neighborhood near a General Mills facility, sued General Mills, alleging that the company caused trichloroethylene (TCE) to be released onto the ground and into the environment near the plaintiffs’ neighborhood. The plaintiffs claimed that, as a result of the contamination, TCE vapors migrated into the surrounding residential area, threatening the health of the residents and diminishing the value of their property.
For nearly thirty years, General Mills participated in groundwater clean-up and remediation efforts in the plaintiffs’ neighborhood under the direction of, and in conjunction with, the federal government and the State of Minnesota. In late 2011, in cooperation with the State of Minnesota, General Mills began to evaluate the potential of migration of TCE in the form of vapor from shallow groundwater to the soil above. As noted by the District Court, General Mills installed vapor mitigation systems (VMSs) in 118 homes in the neighborhood.
The plaintiffs first learned of the TCE vapor contamination in 2013, and each of the named plaintiffs received customized VMSs. Seeking to represent a class, the residents asserted five legal claims: (1) violation of CERCLA; (2) common law negligence; (3) private nuisance; (4) willful and wanton misconduct; and (5) violation of the Resource Conservation and Recovery Act. Personal injury claims were not included in the complaint, in a deliberate attempt to avoid class certification problems. This will be discussed below.
The District Court found that the requirements of Federal Rule of Civil Procedure 23 were satisfied, and certified the proposed class. However, the Eighth Circuit reversed, finding that the class lacked the requisite commonality and cohesiveness to satisfy Rule 23.
Specifically, the Eighth Circuit noted that the District Court had attempted to artificially narrow the issues and the class membership so as to create class standing by first excluding personal injury claims and any plaintiffs with identifiable personal injury claims, and then by limiting claims to whether injunctive relief would be warranted. The District Court had bifurcated the action into two phases. It first certified a class under Rule 23(b)(2) to determine whether injunctive relief was appropriate. It then set up a second phase under Rule 23(b)(3) to determine the money-damage portion of the case .
The Eighth Circuit noted that the use of this sort of “hybrid certification,” insulating the (b)(2) class from (b)(3) the money-damage portion of the case, is “an available approach that is gaining ground in class action suits.” Newberg on Class Actions § 4:38. While Rule 23(b)(3) requires common questions of law or fact to predominate over questions affecting only individual members, Rule 23(a)(2) requires only the establishment of a common question pertaining to an injury suffered by all class members. In this case, though, the Circuit Court concluded that this action could not proceed as a class under either Rule 23(b)(2) or Rule 23(b)(3).
As to Rule 23(b)(2), the Eighth Circuit found the central required element of “cohesiveness” to be lacking. For relief as a class, “the relief sought must perforce affect the entire class at once,” citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011). As a result, the Eighth Circuit found that “[i]t is the disparate factual circumstances of class members that prevent the class from being cohesive and thus unable to be certified under Rule 23(b)(2).”
For Rule 23(b)(3), the Eighth Circuit concluded that individual issues would predominate the inquiry. Notwithstanding the District Court’s attempt to exclude questions on individualized exposure, the Eighth Circuit found: “any limitations in the initial action are, at bottom, artificial or merely preliminary to matters that necessarily must be adjudicated to resolve the heart of the matter.”
Seyfarth Synopsis: U.S. Supreme Court: mere violation of a statute creating a private right of action is not itself sufficient to satisfy the standing requirement under Article III’s “case or controversy.” To establish federal jurisdiction a plaintiff must still establish an “injury in fact” that is both particularized and concrete. As a result, where an environmental citizen suit is brought to enforce a violation causing no or only intangible harm, it should be closely examined to determine whether standing exists.
Seyfarth recently blogged about the holding and implications of Spokeo v. Robins, No. 13-1339 (U.S., May 16, 2016), involving litigation under the Fair Credit Reporting Act (FCRA) for allegedly incorrect personal information appearing on an internet site. The issue in Spokeo concerned whether the plaintiff had Article III standing (a Constitutional requirement) to pursue a mere statutory violation without alleging how the alleged misinformation caused the plaintiff personal harm.
Here, we evaluate whether Spokeo undercuts the ability of private parties to sue under so-called “citizen suit” provisions found in many environmental statutes governing air, water, and hazardous waste, among others. Many alleged violations that are the target of citizen suits do not arise from an individual’s exposure to pollution but instead involve the failure of the regulated entity to provide statutorily mandated reporting, monitoring or recordkeeping. These are commonly referred to as “paperwork violations.” The harm caused to a plaintiff in such situations is intangible at best.
The district court dismissed Robins’ complaint, saying that Robins had not followed Article III’s requirement to plead injury in fact. 2011 WL 11562151, at *1. However, on appeal, the Ninth Circuit Court of Appeals concluded that the mere “violation of a statutory right is usually a sufficient injury in fact to confer standing.” 742 F.3d 409, 412.
Prior to the death of Justice Scalia, many observers of the Supreme Court anticipated that the Court would use Spokeo as a vehicle to narrow the situations where Congress could create private rights of action for statutory violations causing a plaintiff no direct injury. However, with the death of Justice Scalia and the potential for a 4-4 deadlock, the ruling in Spokeo is not as definitive as these observers of the Court may have predicted.
Spokeo held that to establish standing, one must allege more than mere violation of a statute purporting to create a private cause of action. However, the Court observed, standing can be established by alleging that a statutory violation caused plaintiff an “injury in fact” that is both “particularized and concrete.” As such, the Court remanded the case to the Ninth Circuit to examine the existence of standing in Spokeo in light of the injury in fact requirement.
The Court in Spokeo acknowledged that an injury could be “intangible.” The Court also recognized that Congress may elevate “concrete, de facto injuries” that were previously inadequate in law to the status of legally cognizable injuries.
Within the context of environmental matters, however, the issue of what would constitute a concrete injury remains uncertain. For example, is the mere existence of a paperwork violation sufficient to cause harm to an environmental activist? Is a plaintiff harmed in a concrete way by not having access to the information that Congress had decided to make public?
We do not know for sure. However, in Spokeo, the Court observed that there are situations where no additional harm needs to be shown beyond a harm identified in a statute. In doing so, it cited two cases that appear to be analogous to paperwork violations. They are:
- Federal Election Comm’n v. Akins, 524 U. S. 11, 20–25 (1998), which confirmed that a group of voters’ “inability to obtain information” that Congress had decided to make public is a sufficient injury in fact to satisfy Article III.
- Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989), which held that two advocacy organizations’ failure to obtain information subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue.”
We view Spokeo as a slight tilt of the playing field in the context of environmental matters. While the tilt is slight, it is nonetheless a tilt that could provide an opening to challenge a citizen suit where a plaintiff cannot articulate or prove harm beyond the mere violation of a statute. After Spokeo, targets of environmental citizen suits are more likely to challenge a plaintiff’s standing. A plaintiff will need to do more than cite to the statutory paperwork violation, and to survive dismissal will need to allege and prove that it suffered a particularized and concrete injury from being denied access to records, monitoring results, or reports that Congress has determined are required from the regulated community.
Seyfarth Synopsis: In this edition of Seyfarth Shaw’s Energy Insights Newsletter, our Energy and Clean Technologies team covers important developments in Q1 2016 for the energy industry including 1) the fate of the Clean Power Plan and potential impact on U.S. compliance with the Paris Agreement, 2) the increased pressure by the DOL to wage and hour practices in the oil and gas industry, and 3) growing interest and use of EB-5 financing for renewable energy projects and proposed changes to the program.
Clean Power Plan Awaits Decision
In June 2014, Environmental Protection Agency (EPA) issued its proposed Clean Power Plan (CPP) to regulate CO2 emissions from existing power plants under section 111(d) of the Clean Air Act (CAA), which proposes to limit carbon emissions from existing fossil fuel-fired electric generating units, including steam generating, integrated gasification combined cycle, or stationary combustion turbines (in either simple cycle or combined cycle configuration) operating or under construction by January 8, 2014. Specifically, the CPP requires states to reduce carbon dioxide emissions from existing power plants by 32 percent below 2005 levels by 2030. States are required to submit compliance plans to reduce their emissions by 2022, with full compliance not required until 2030. The Department of Energy (DoE) believes implementing the CPP will forestall hundreds of millions of tons of greenhouse-gas emissions from human activities, a key driver of climate change.
However, immediately following the release of these proposed regulations, two dozen states and numerous interested corporations and industry groups sued the administration claiming the EPA overstepped its constitutional authority and statutory authority under the CAA. And on February 9, 2016, the U.S. Supreme Court granted a stay preventing the implementation of the CPP pending further review. Oral arguments are scheduled for June 2nd and even though it could take up to a year for a final ruling to be released, some experts believe the three judge panel will seek to render a decision by the end of summer 2016 since the judges’ clerks change at the end of August, a potential delay.
Many have argued that the stay could, and if the CPP is struck down entirely, would, impact the U.S.’s ability to meet the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement goals of (1) reducing emissions “in the range” of 17 percent below 2005 levels by 2020 and (2) a “further emission reduction” up to 26-28 percent of total reductions below 2005 levels by 2025.
Interestingly, voting in favor of the stay was Justice Scalia’s last decision before passing away suddenly. A 4-4 decision would have upheld the lower court’s reversal and thus implementation of the CPP.
The Oil and Gas Industry’s Wage and Hour Practices Remain A High Priority for the Department of Labor
In 2012, the Department of Labor’s Wage and Hour Division (WHD) began an initiative to improve oil and gas industry compliance with the Fair Labor Standards Act (FLSA) and in particular, the federal law that requires overtime compensation for hours worked over 40 in a workweek. According to the WHD, this ongoing initiative was meant to “focus resources where data shows that violations are common and business models lend themselves to violations.”
Through 2015, the WHD has obtained several high-dollar settlements from oil and gas companies. Notable recent settlements include a $4.5 million settlement with an oil and gas exploration and production company for failure to compensate employees for pre-shift meetings and an $18.3 million settlement with an oilfield services company for misclassification of employees in 28 job positions. These investigations, and their subsequent settlement, demonstrate both the depth and the breadth of the WHD’s expending reach. Already in the first quarter of 2016, the WHD has touted settlements with six oil and gas companies for a total of almost $2 Million under similar wage hour theories. These companies’ services range from drilling to engineering to selling oil and gas equipment. The WHD recently expressed its hope that industry executives will take the lead and serve as models for industry-wide compliance.
And, while the “industry” on the radar used to include only oil and gas exploration and production, or oilfield services, companies, the WHD has expanded its pursuit to include related businesses, such as water and stone haulers, trucking, lodging, water, and staffing companies. One prime example of this expansion lies with a supply chain management company that settled with the WHD to the tune of over $146,000 in August of 2014 for failure to pay overtime at time and a half for hours worked over 40 in a week.
After four years, 1,100 investigations, and $40 million in settlements, the WHD is still on the hunt and it shows no signs of slowing down. As the WHD stated in a recent press release, “employers must know and comply with the law.” Employers in the oil and gas industry should continue to review their current wage and hour practices to ensure compliance.
Foreign Investors Going Green in Pursuit of Green Cards
For those who have heard of or read about “EB-5” financing, they may have only thought it was for certain categories of assets such as resorts, casinos, hotels, multi-family and mixed use office properties, which make up more than half the EB-5 funding distributed. However, a smaller (3-5%), but growing segment of financing obtained from foreign investors participating in the employment-based, fifth-preference visa category (EB-5) has been within the renewable energy industry, and has significantly contributed toward the development of large-scale energy projects across the United States. Not only has the percentage of EB-5 financing in the alternative energy space grown, so has the number and size of projects in the areas of utility scale solar power, alternative fuel production and lithium battery production, especially in California. As the nation’s preference for clean energy over traditional fossil fuels has gained momentum and states increasingly seek to implement aggressive renewable portfolio standards, marketing EB-5 projects to foreign investors has become much more common since it positively correlates with increased job creation.
By way of background, under the United States Citizenship and Immigration Services’ (USCIS) EB-5 Immigrant Investor Pilot Program (Program), foreign individuals who invest $1,000,000 (or $500,000 in targeted employment areas (TEA) in a new commercial enterprise are able to pursue permanent residency in the United States if they can prove that their investment created a minimum of ten full-time jobs. The permitted $500,000 investment amount for projects located in areas of high unemployment or rural tracts of land is ideal for the alternative energy industry since the power plants, solar panel farms, and other energy-generating equipment installations require large amounts of land.
The Program was initially due to expire on September 30, 2015 and received a one-year extension. However, in connection with a potential further extension, some bad press and bad apples has caused lawmakers to draft new bills to provide additional protections for investors in EB-5 projects. For example, the Integrity Act, introduced by Senators Schumer, Flake and Cornyn on December 17, 2015, seeks to strengthen the Program by requiring greater government oversight of regional centers (entities that sponsor the EB-5 projects), including authority to assess fines for noncompliance, and requiring registration of all affiliated parties of regional centers. Other bills include increasing the required minimum investment amount in a TEA from $500,000 to $800,000, and from $1 million to $1.2 million for non-TEA investments. Further, the SEC has been carefully watching EB-5 financings and their compliance with securities laws. However, despite the new oversight, developers continue to move full-steam ahead and raise hundreds of millions of dollars in EB-5 funding to create jobs, including those in the renewable industry.
Seyfarth Synopsis: New OSHA final rule requires employer to submit data electronically, to be posted on the OSHA website.
On May 12, 2016 the Occupational Safety and Health Administration published the final rules requiring employers to submit injury and illness data electronically. 81 Fed. Reg. 29624.
OSHA will release this information publicly on its website, believing that its disclosure will shame employers into improving workplace safety. The electronic data submission will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The final rule also includes new anti-retaliation and injury and illness reporting provisions. The final rule will take effect on January 1, 2017.
Electronic Submission of Injury and Illness Data
Employers with 250 or more employees must submit information electronically from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
OSHA will require employers to submit all information from their logs, save for columns with employee names, employee addresses, health care professional names, and health care treatment facilities. The rules do not specify how this information will be submitted electronically. Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.
Also, the electronic disclosure requirements will apply to employers located in State Plan States.
OSHA will then post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives. The specifics of its new data disclosure portal are not explained in the regulations.
Anti-Retaliation and Injury Reporting Procedure
The final rules re-state and enhance protections from retaliation for employees who report work-relate injuries or illnesses. Further, the regulations require that an employer establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.
For additional advice on injury and illness reporting, contact your Seyfarth attorney.
Seyfarth Synopsis: The 9th Circuit confirmed that an EPAs request for information letter investigating a Superfund cleanup site is a “suit” triggering an insurer’s duty to defend.
This week, the Ninth Circuit Court of Appeals affirmed a District Court decision that an information request issued by the U.S. Environmental Protection Agency in connection with an investigation into a Superfund cleanup site is a “suit” triggering an insurer’s duty to defend. Ash Grove Cement Company v. Liberty Mutual Insurance Company, et al., Nos. 13-35900, 13-35905, and 14-35298 (9th Cir. May 11, 2016).
In the underlying case, Ash Grove received an information request from the EPA pursuant to section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9604(e) (104(e) letter), about contamination at the Portland Harbor Superfund Site. Ash Grove promptly forwarded the 104(e) letter to its insurers.
In briefing, the insurers argued that the 104(e) letter was not a “suit” under Oregon law. The Ninth Circuit, though, had previously held that a 104(e) letter is a “coercive information demand” that is “an attempt to gain an end through legal process,” and was therefore a “suit” under Oregon law. Anderson Bros., Inc. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 932-33, 935 (9th Cir. 2013). The Court also rejected the insurers’ argument that the intention of the parties could not have been to treat a 104(e) letter as a “suit,” because the policies distinguished between a “claim” and a “suit.” Id. at 933-34. In addition, the Court addressed and rejected the insurers’ contention that a 104(e) letter cannot constitute a “suit” because it does not require that an “insured take action with respect to contamination within the State of Oregon.” Id. at 934-35.
Finally, the insurers argued, even if the 104(e) letter constituted a suit, their duty to defend ceased after Ash Grove submitted its response to the letter. The Court disagreed, noting that Oregon law provides that the duty “continue[s] as to each unit [of property] until the Record of Decision for that unit [i]s filed.” Schnitzer Inv. Corp. v. Certain Underwriters at Lloyd’s of London, 104 P.3d 1162, 1169 (Or. Ct. App. 2005), aff’d, 137 P.3d 1282 (Or. 2006).
Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for temporary employee’s safety and health in two new guidance documents relating to safety and health training and hazard communications. Temporary agencies and host employers that use their services should heed this guidance in carrying out their shared responsibility for temporary worker safety.
Dr. David Michaels, the Administrator of the Occupational Safety and Health Administration, has reinforced OSHA’s position that “host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.” This is a serious issue and one that can be difficult with levels and layers of owners, contractors, subcontractors, and temporary agencies providing and supervising site staff.
We have blogged previously about OSHA’s active enforcement activities and guidance documents relating to this important topic: “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”
To assist employers in meeting this shared responsibility, OSHA has just released two more guidance documents relating to safety and health training and hazard communication. Temporary Worker Initiative (TWI) Bulletin No. 4 – Safety and Health Training, Temporary Worker Initiative (TWI) Bulletin No. 5 – Hazard Communication. Under its hazard communications guidance, OSHA states that both the host employer and the staffing agency share responsibility to ensure temporary workers are informed and trained regarding exposure to hazardous chemicals. Similarly, under its safety and health training bulletin, OSHA emphasizes the shared responsibility host employers and temporary agencies have for providing proper training. OSHA also confirms that the party who supervises the temporary employee’s work must comply with OSHA’s injury and illness recordkeeping and reporting requirements for temporary workers.
Other highlights from OSHA’s most recent guidance include the following:
- OSHA recommends that the staffing agency and host employer contractually specify the division of responsibilities to ensure alignment between the staffing agency and host employer, but notes that neither can contract away compliance obligations.
- In most cases, the host employer is responsible for site-specific training and hazard communications; whereas the staffing agency is responsible for generic safety and health training (including hazard communications training).
- Although the host employer is usually responsible for site-specific training because it is often in the best position to provide such training, the staffing agency is responsible for ensuring that employees receive proper site-specific training, and must have a reasonable basis for believing that the host employer’s training adequately addresses the potential hazards to which employees will be exposed at the host employer’s worksite.
- While the staffing agency may have a representative at the host employer’s worksite, the presence of that representative does not transfer responsibilities for site-specific training to the staffing agency.
- Training provided to temporary workers should be identical or equivalent to the training given to the host employers’ own employees.
Staffing agencies and host employers need to understand OSHA’s view that they are jointly responsible for temporary workers’ safety and health. As this newly published guidance makes clear, fulfilling this shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.
Employers in the food industry have a new headache to worry about. On April 18, 2016, the federal Occupational Safety and Health Administration released final rules establishing standards and procedures for whistleblower and retaliation complaints. Employees now may file whistleblower complaints with OSHA based on their reports of food safety concerns.
The FSMA protects employees who provide information relating to any action that the employee reasonably believes to be in violation of the Federal Food, Drug, and Cosmetic Act. The Act protects internal reports to management, even if made in the ordinary course of the employee’s duties. If an employee works as a food safety professional, the employee’s regular job duties (reporting food safety issues to the employer) are “protected activities.” Any adverse employment action against a food safety professional could result in a retaliation claim with OSHA, and subject the employer to an Agency investigation.
The FSMA further protects employees who testified or assisted in a proceeding about the violation, or refused to participate in any activity or assigned tasks reasonably believed to be in violation of the law.
Burdens of Proof
Under the regulations, an employee complainant need only present “direct or circumstantial evidence” to give rise to “an inference” that (1) the employer suspected that the employee engaged in protected activity, and (2) the protected activity was a “contributing factor” in the adverse action. Mere “temporal proximity” to the protected activity is sufficient to meet the complainant’s burden. OSHA will conduct an investigation, unless the employer can demonstrate by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity.
After OSHA completes its investigation, the Agency will have to prove to an Administrative Law Judge by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. An employer can avoid liability if it demonstrates by “clear and convincing evidence” that it would have taken the same adverse action in the absence of any protected activity.
Statute of Limitations
The rule provides a 180-day statute of limitations for retaliation claims, beginning when the employee is aware or reasonably should be aware of the employer’s decision to take an adverse employment action.
Remedies and Settlement
The regulations provide for damages, reinstatement with back pay and interest, and litigation costs. OSHA retains the right to review and reject any settlement agreement between the complainant and the employer.
Employers must be vigilant to promptly address food safety issues and prevent retaliation claims from employees. Employers should diligently record their rationales for adverse employment actions. If an employer receives a retaliation claim, the employer should take immediate action; a position statement is due to the OSHA investigator within 20 days of receipt of notice. To avoid an inspection, that position statement must meet a high bar of proof that no retaliation took place.
What is Zika?
The Zika virus disease (Zika) primarily is spread through the bites of infected mosquitoes. The most common symptoms of Zika are fever, rash, joint pain, and conjunctivitis (red eyes). While some cases of Zika have occasionally been severe, infected people rarely go to the hospital or die from Zika. For this reason, many people might not realize they have been infected. An individual’s symptoms may appear anywhere from 2 to 7 days after exposure to the virus.
Where is Zika Being Transmitted?
According to the CDC, Zika has been reported throughout South America, Central America, and the Caribbean. Mosquito-born Zika cases have been reported in United States territories, while hundreds of reports cases in the continental United States mostly have been limited to travel-borne sources. Zika may be sexually transmitted or passed to a baby around the time of its birth. The Zika virus has been documented to result in injuries to fetuses, resulting in severe birth defects such as microcephaly. Federal agencies warn that mosquitoes in the Continental United States will become infected with and spread Zika, and travel-associated Zika infections in U.S. states may result in the local spread of the virus.
OSHA Interim Guidance and Recommendations
We had recently issued a Management Alert on Zika – Employer Liability Issues. On April 22, 2016, the federal Occupational Safety and Health Administration, along with the National Institute for Occupational Safety and Healthy, released an Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus (OSHA – DTSEM FS-3855). The Interim Guidance provides recommendations for employers on issues related to Zika, including hazard communication, employee clothing, and the proper use of insect repellants. Compliance with these recommendations is voluntary, as they are not formal OSHA standards. However, employers should review these recommendations and adjust polices accordingly.
For outdoor workers, OSHA recommends:
- Inform workers about their risks of exposure to Zika through mosquito bites and train them how to protect themselves. Check the CDC Zika website to find Zika-affected areas.
- Provide insect repellents and encourage their use.
- Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing workers with hats with mosquito netting to protect the face and neck.
- In warm weather, encourage workers to wear lightweight, loose-fitting clothing. This type of clothing protects workers against the sun’s harmful rays and provides a barrier to mosquitoes. Always provide workers with adequate water, rest and shade, and monitor workers for signs and symptoms of heat illness.
- Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite.
- If requested by a worker, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.
The Interim Guidance provides specific recommendations for health care workers, laboratory workers, and workers who specialize in mosquito control.
Dealing with Infected Employees
When any employees are suspected or confirmed to be infected with Zika , OSHA recommends that employers:
- Ensure that supervisors and all potentially exposed workers are aware of the symptoms of Zika.
- Train workers to seek medical evaluation if they develop symptoms of Zika.
- Assure that workers receive prompt and appropriate medical evaluation and follow-up after a suspected exposure to Zika.
- If the exposure falls under OSHA’s BBP standard (29 CFR 1910.1030), employers must comply with medical evaluation and follow-up requirements in the standard. See 29 CFR 1910.1030(f).
- Consider options for granting sick leave during the infectious period. The CDC describes steps employers and employees can take to protect others during the first week of Zika illness.
Employee Travel to Zika-infected Areas
OSHA’s Interim Guidance provides recommendations for dealing with employee travel to areas experiencing Zika outbreaks:
- Review the CDC guidance prior to assigning travel.
- Consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.
- Consider delaying travel to Zika-affected areas, especially for workers who are or may become pregnant or whose sexual partners may become pregnant.
Even if they do not feel sick, travelers returning to the United States from an area with Zika should take steps to prevent mosquito bites for three weeks so they do not pass Zika to mosquitoes that could spread the virus to other people.
However, employers should closely consider any travel prohibitions — restrictions on employee travel on the basis of pregnancy or gender should be closely scrutinized, as they may form the basis of a gender discrimination claim. Zika is advancing into the Continental United States and employers need to be prepared. Employers should review these recommendations and plan accordingly.