Investigations/Inspections

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).

The Final Rule, which will be effective on June 2, 2018, requires that:

  • Each working place be examined at least once each shift for conditions that may adversely affect safety or health of miners before work begins or as miners begin work in that place;
  • Mine operators promptly notify miners in affected areas of any conditions that may adversely affect their safety or health and promptly initiate appropriate corrective action. Notification is only necessary when adverse conditions are not promptly corrected before miners are exposed;
  • A record of the examination be made before the end of each shift, including the name of the person conducting the examination; the date of the examination; location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners that is not promptly corrected, and the date of the corrective action (when that occurs); and
  • The record be made available to MSHA and miners’ representatives upon request.

The new rule imposes new requirements on mine operators, but is notably less burdensome that previous iterations of the workplace examination rule that has been in process for several years. For example, a previous proposed version of the rule would have required operators to examine workplaces before work began, whereas now the rule adds on “or as miners begin work in that place.” Also importantly, a previous version of the rule would have required operators to notify miners of all identified conditions, even if those conditions had been corrected before work began. Now, under the final rule, notification will only be required with respect to conditions that are not corrected. On a related note, operators need only make a record of conditions that are not promptly corrected.

Although the new rule is less burdensome on the regulated community than previous versions of the rule would have been, operators need to be mindful of potential pitfalls. The new rule appears to leave open the opportunity for MSHA to use operator examination records as “evidence” of a violation, or to support higher negligence findings. And of course the new requirements will provide MSHA with more bases to issue citations, since it will be a violation to not complete the various requirements under the new rule, including documentation of the date corrective action is completed for issues not promptly corrected.

MSHA is holding stakeholder meetings at six locations across the country to provide “outreach and compliance assistance materials on the Final Rule.” In addition, that Agency plans stakeholder meetings in Seattle, Washington, and at MSHA’s district offices by way of video teleconferencing at a later date.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Workplace Safety and Health (OSHA/MSHA) Team.

By Adam R. Young, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA may refuse to allow its compliance officers to testify in civil tort proceedings.

In a personal injury action (associated with an accident that resulted in an OSHA inspection), a trucking company sought to compel the deposition testimony of two OSHA compliance officers because the accident was the genesis of the tort litigation.  The plaintiff sought to recover for injuries allegedly sustained by the an individual who “was working on a traffic light in a bucket above traffic … when a tractor trailer … struck the bucket following which [the individual] fell from the bucket to the ground.” Watsontown Trucking Co. v. U.S. DOL, 26 OSHC 2166 (S.D.N.Y. Jan. 17, 2018).

The District Court explained that OSHA had determined that “one of the chief causal factors of the accident [was] the lack of warning devices” surrounding the raised bucket in which the individual was working.  The trucking company served subpoenas on OSHA’s compliance officers that conducted the inspection, directing them to appear for depositions.  OSHA objected and refused to allow its compliance officers to be deposed.

OSHA argued that its obligation only required it to “weigh the party’s need for the testimony [or documents] against the adverse effects on [OSHA’s] concerns,” which include “centralizing the dissemination of information of the agency (e.g. restricting investigators from expressing opinions on policy matters), minimizing governmental involvement in controversial matters unrelated to official business and avoiding the expenditure of government time and money for private purposes.”

The Court reviewed OSHA’s denial of the deposition request because it was a “final agency action for which there is no other adequate remedy,” and therefore was ripe for judicial review. 5 U.S.C. § 704.  The Court held that OSHA’s denial of the deposition testimony was “not based on impermissible considerations, was not ‘arbitrary [or] capricious,’ and did not violate the APA.”

Accordingly, this case upholds OSHA’s right to refuse to allow its compliance officers to testify in civil proceedings.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.

In yet another move providing relief to industry from federal enforcement, the EPA Office of Enforcement and Compliance Assurance (OECA) last week issued an Interim Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States (January 22, 2018) (Guidance).

The Guidance, issued by OECA Assistant Administrator Susan Parker Bodine to Regional Administrators, suggests, with respect to enforcement cases,  a more collaborative partnership between the EPA and states with authorized environmental programs.  It applies to all EPA compliance assurance activities, and Bodine anticipates it will  “develop principles and best practices for State and EPA collaboration in inspections and enforcement, work planning and implementation, National Enforcement Initiatives, and outcome and performance measurement.”

The Guidance sets out the expectation that EPA Regional Offices and their respective states will henceforth work together to achieve environmental compliance rather than EPA repeatedly auditing state level efforts (or from the standpoint of regulated industry, interfering with them).  The Guidance calls for the Region and State to discuss and share information including lists of planned inspections as well as an understanding concerning when a facility will be informed of an inspection in advance.  For any planned program audits, “EPA findings should be considered preliminary until the State has had an opportunity to review and respond.”  Except in emergency situations, EPA aims to allow states to address a deficiency prior to being subject to enforcement action.

Under the Guidance, EPA recognizes that States are given “primacy” in authorized programs.  “With respect to inspections and enforcement, EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs….”  EPA expects to “step in”,  in limited circumstances where actions require specialized EPA equipment and/or expertise, or where noncompliance issues need to be tackled at an interstate level.  Generally, “the Region should defer to the State except where the EPA believes that some EPA involvement is warranted.”

While the notion of cooperative federalism grants states leeway to decide how best to enforce environmental programs, allowing them to consider the unique circumstances and stakeholder interests in their state, the reality is the Guidance places a heavy burden on states to take on more responsibilities while dealing with their own budgetary constraints.  “Cooperative federalism” presumes states have adequate financial support to implement complex environmental requirements.

OECA expects to evaluate the success of the Guidance by requesting that Regions provide a progress report by September 28, 2018.  Unless the new approach is coupled with adequate financial support from the federal government to assist states in implementing complex and broad federal requirements, the collaborative partnership that the Guidance aims to achieve may be strained from inception.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court’s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.

Prior to 2012, OSHA’s longstanding position was that an employer’s duty to record an injury or illness continues for the full five-year record-retention period.  However, in 2012, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012), rejecting OSHA’s position.

The AKM or “Volks” decision found that the standard six month statute limitations applies to an employer’s duty to record work related injuries and illnesses on the OSHA 300 log. The Volks decision effectively ended OSHA practice of issuing citations for alleged recordkeeping errors going back five years.  This decision did not sit well with OSHA.  In December, 2016 OSHA announced a new final rule that OSHA claimed “clarifies” an employer’s “continuing” obligation to make and maintain an accurate record of each recordable injury and illness for a full five years.

As we previously blogged, OSHA’s rule was a clear attempt to avoid the D.C. Circuit‘s ruling.  In response, Congress passed a Resolution to block OSHA’s rule, stating that “such rule shall have no force or effect.”  Agreeing with Congress, the White House issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

The December midnight rule has now been rescinded by OSHA, effectively acknowledging that the six month statute of limitations applies, not the five year statute of limitations.  82 Fed. Reg. 20548 (May 3, 2017).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, OSHA has rescinded its policy allowing union representatives to participate in OSHA inspections of non-union employers.

We blogged previously about OSHA’s 2013 standard interpretation guidance letter allowing workers in non-union workplaces to designate a union representative to act as a “walk-around representative” during OSHA compliance inspections.  At the time, we cautioned that an undesirable consequence of the interpretation was that it allowed outsiders with interests potentially contrary to the employer’s to influence the compliance inspection in an effort to generate union support amongst employees.  Since its issuance, OSHA has used the letter to force union participation in inspections of non-union workplaces over employer objections.

In September, 2016 the National Federation of Independent Business (NFIB) sued in Federal Court to challenge OSHA’s “illegal administrative expansion” of the “walk-around” right. The NFIB complaint focused on the fact that, for over four decades, OSHA construed the Act to “afford employees a limited right to accompany an OSHA compliance safety and health officer during a workplace inspection.” See 29 C.F.R. § 1903.8.

OSHA responded to the suit by filing a motion to dismiss in which it raised a number of threshold arguments before attacking the substance of NFIB’s claims. On February 3, 2017, the federal court put a serious dent in OSHA’s continued reliance on the interpretation in a ruling signaling victory to the rising chorus of objections from the business community. The court flatly rejected OSHA’s threshold arguments and then sided with NFIB’s argument that the letter was a legislative rule subject to notice and comment rulemaking, not “interpretive guidance” as OSHA contended.  In reaching this conclusion, the court observed that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee,” and, in turn, should have gone through the formal rulemaking process.

On April 25, 2017, OSHA withdrew this policy via a Rescission Memo.  It states that “given the express guidance in the statute and the applicable regulation, OSHA is withdrawing the February 21, 2013 letter to Mr. Sallman as unnecessary.  Likewise, the guidance in this memorandum supersedes OSHA Instruction CPL 02-00-160, Field Operations Manual (FOM) (8/2/2016), Chapter 3, Section VII.A, which will be revised accordingly.”

Following OSHA’s rescission, NFIB voluntarily dismissed its lawsuit.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, “more clearly states employers’ obligations” to record an injury or illness which continues for a full five-year record-retention period.

The Occupational Safety and Health Administration announced in December 2016 a new final rule that OSHA claims “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015. In response, the House of Representatives this week passed a Resolution to block the regulation, stating that “such rule shall have no force or effect.”

The bill, House Joint Resolution 83, passed by a vote of 231 to 191, will now move to the Senate for consideration. The White House had issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

In a statement, Rep. Byrne said: “OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety. What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation. As Republicans have been saying for years, OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist.”

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the standard six month statute limitations to an employer’s duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.  OSHA did not appeal the Volks decision.  As we previously blogged, OSHA’s rulemaking was a clear attempt to avoid the D.C. Circuit of Appeals ruling.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, James L. Curtis, and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, a Texas federal court has refused to dismiss a lawsuit challenging an OSHA interpretation under which non-employee union representatives were permitted to participate in OSHA inspections of non-union employers.

We blogged previously about OSHA’s 2013 standard interpretation guidance letter allowing workers in non-union workplaces to designate a union (or other) representative to act as a “walk-around representative” during OSHA compliance inspections.  At the time, we cautioned that an undesirable consequence of the interpretation was that it allowed outsiders with interests potentially contrary to the employer’s to influence the compliance inspection in an effort to generate union support amongst employees.  Since its issuance, OSHA has used the letter to force union participation in inspections of non-union workplaces over employer objections.

On February 3, 2017, a Texas federal judge put a serious dent in OSHA’s continued reliance on the interpretation in a ruling signaling victory to a rising chorus of objections from the business community.  The ruling came in case in which the National Federation of Independent Business (NFIB) challenged the validity of the interpretation on the following two bases: (1) the letter constitutes a rule subject to notice and comment rulemaking requirements; and (2) the interpretation exceeds OSHA’s authority.

OSHA responded to the suit by filing a motion to dismiss in which it raised a number of threshold arguments before attacking the substance of NFIB’s claims. The court flatly rejected OSHA’s threshold arguments and then sided with NFIB’s argument that the letter was a legislative rule subject to notice and comment rulemaking, not “interpretive guidance” as OSHA contended.  In reaching this conclusion, the court observed that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee,” and, in turn, should have gone through the formal rulemaking process.

The Upshot for Employers

While the court’s ruling does not conclude the litigation, it sends a very clear message about how the dispute will likely end in the event OSHA continues to defend its position regarding the letter. Moreover, with a new administration committed to reducing agency overreach and armed with the ability to simply withdraw the letter, it appears the continued viability of the interpretation is very much in doubt.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, II, Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalizes rule that “more clearly states employers’ obligations” to record an injury or illness which continues for the full five-year record-retention period.

The Occupational Safety and Health Administration announced last week a new final rule that “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015.

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the six month statute limitations to an employers duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.

According to OSHA , this new final rule merely seeks to more clearly define employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. According to OSHA the amendments in the final rule add “no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”

In reality, the new rule’s an obvious attempt to avoid the D.C. Circuit decision in Volks. It is important to note that OSHA waived its right to appeal the Volks decision to the Supreme Court at the time and thus cannot legally evade the legal precedent created by that decision.

It is important for employers to ensure that employees who are responsible for recording the company’s injuries and illnesses are well trained to correctly identify those items that need to be logged.

The effective date for the rule is January 18, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has recently amended its definition of “repeat” for inspcetion citations to reconcile differences from the Federal OSHA program. The updated rules expand potential liability to California employers.

In August 2015 Cal/OSHA published a Notice of Proposed Rulemaking regarding Repeat citations. The purpose of the amendment was to make California’s “Repeat” violation classification more consistent with Federal enforcement standards by eliminating the “current geographic restrictions” for issuing a “Repeat” citation, and recalculating the starting time for calculating the look back period for a “Repeat” violation. The final Repeat Regulation rule was recently adopted and will be effective on January 1, 2017.

As noted in the Cal/OSHA Final Statement of Reasons, the Director determined that at a minimum, “she must amend the look-back period from three to five years….” “The Director has determined that under Labor Code section 50.7(d), she may not reject Federal OSHA’s recommendation to eliminate establishment/geographic restrictions, because doing so would make California’s Repeat enforcement policy less effective than the federal policy, thus jeopardizing future state plan funding.”

Starting January 1, 2017, California employers will be at risk of a Repeat citation that is based on a previous final citation issued to the same employer anywhere within the State of California.

Also, Cal/OSHA will be able to base a Repeat citation on a previous citation that is many as five (5) years old. Employers should examine their citation history and understand how the new rules may impact their risk of Repeat citations.

The revised rules, which become effective January 1, 2017, clearly increase the risk of Repeat citations and the higher penalties that come with such citations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: Industry has sued to block OSHA’s efforts to give unions increased access to non-union worksites.

We had blogged previously about OSHA’s new standard interpretation guidance letter that would allow workers without a collective bargaining agreement to designate a union representative to act on their behalf as their “walk-around representative” during an OSHA inspection. We warned at that time that this interpretative guidance was essentially an invitation to allow union representatives access to employees at non-union facilities for the purpose of union organizing.

Last week the National Federation of Independent Business (NFIB) sued in Federal Court to challenge OSHA’s “illegal administrative expansion” of the “walk-around” right. The NFIB complaint notes that for over four decades OSHA construed the Act to “afford employees a limited right to accompany an OSHA compliance safety and health officer during a workplace inspection.” See 29 C.F.R. § 1903.8.

Under OSHA’s long-standing approach to this provision, an “employee representative” had to be an employee of the employer whose workplace was the subject of the inspection. In very limited cases OSHA might allow for third-party technical specialists to accompany the compliance officer when their presence would be “reasonably necessary.”  OSHA’s guidance letter blows this wide open by allowing a union to serve as the third-party technical specialist even when the union does not represent the employees.

NFIB indicates that OSHA longstanding construction of the Act’s walk-around right accurately captured a delicate legislative balance. “Congress concluded that employees should be allowed to participate in inspections meant to protect their health and safety. But Congress also recognized that this participatory right should not be used as a pretext to facilitate union access to proselytize employees of open-shop businesses….”

According to the Complaint, the NFIB alleges that the real purpose of the change was to facilitate union access to open-shop workplaces. The interpretation “effected these changes without giving the public prior notice or an opportunity to comment. The [interpretation] conflicts with Congress’s purpose behind the Act’s walk-around provision.” NFIM concludes that interpretation’s promulgation also violated the notice-and-comment requirements of the Administrative Procedure Act, 5 U.S.C. § 553(b)-(c).

We will keep you up-to-date as this case proceeds.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.