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Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, OSHA has rescinded its policy allowing union representatives to participate in OSHA inspections of non-union employers.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

By James L. Curtis and Craig B. Simonsen

iStock_000041284206_MediumSeyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

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 Brent I. Clark and Ilana R. Morady

iStock_000009254156LargeSeyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

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.

By Brent I. Clark and Ilana R. Morady

iStock_000076487827_LargeExpedited Hearings

A hot topic today is developments in the law of California OSHA (Cal-OSHA). Panel members are discussing the new and controversial rule on expedited proceedings under 8 CCR 373. Under the expedited proceedings rule, cases are put on a fast track when abatement has been appealed or abatement has not occurred.

Specifically, the rule states “Where the Appeals Board is aware or is notified that an alleged violation appealed is classified by the Division of Occupational Safety & Health as a Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat or Failure to Abate, and either abatement is on appeal, or abatement has not occurred, the Appeals Board shall expedite the proceeding.”

When a case is expedited, a hearing must occur within 150 days of when an employer’s appeal is docketed. This new rule has proved itself to be very burdensome on employers, who are faced with either quickly preparing for hearing or abating alleged hazards which may have no actual basis in law or fact. This scheme brings California closer to other state plans which don’t permit appeals to stay abatement, especially because the effect has been that many employers are abating alleged hazards during the appeal process, regardless of whether the allegations have merit.

Heat Illness

As employers in California know, Cal-OSHA has a heat illness standard. A new provision under the standard involves access to shade. Specifically, 8 CCR 3395 now requires that employees be allowed and encouraged to take a preventative cool-down rest in the shade “when they feel the need to do so” to protect themselves from overheating. While everyone agrees that heat illness is a serious issue that must always be prevented to the extent possible, this new provision has the potential to create problems for employers because of the subjective nature of the rule and the potential for abuse by employees.

If employers encounter situations where they believe an employee is abusing the “when they feel the need to do so” requirement, they must remember to proceed with caution. Unfortunately the vague nature of the rule does not provide a lot of guidance on how employers can react these situations while avoiding potential citations or retaliation allegations.  The new regulation also requires employers to pay an additional hour of pay whenever they fail to meet the requirements of the standard.   This creates an additional non-OSHA penalty monetary obligation that can present challenges for covered employers.

Repeat Violations

The definition of what constitutes a repeat is changing. Currently the “look back” for repeats in California is 3 years. Now, keeping in line with federal-OSHA, Cal-OSHA is expected to start to looking  back 5 years. The other change that will occur is Cal-OSHA will be citing repeat violations based on previous state-wide violations.

This is a significant change; previously, Cal-OSHA could only cite for a repeat violation if the previous violation occurred at the same facility. We will blog an update when this new rule takes effect. The date is uncertain at this time but could be within the next few weeks.

By Adam R. Young and Craig B. Simonsen

Violence, often involving firearms, is an increasingly common occurrence in the 21st century workplace.  The Federal Bureau of Investigation notes that even though homicide is “the most publicized form of violence in the workplace, it is not the most common.”

The FBI defines workplace violence as “any physical assault, threatening behavior or verbal abuse occurring in the work setting.” While some types of these acts “may not be interpreted immediately as violence … many people will witness them in their lifetimes.”

The FBI warns that it is “vital that employers create a sense of hypervigilance in their employees by providing formal training in workplace violence prevention.” To help employers prevent workplace violence, the U.S. Department of Homeland Security (DHS) has recently released an “Active Shooter Preparedness” website intended to make training and other resources available to employers.

Of particular interest are the Active Shooter Webinar materials, including a ninety minute Webinar that the DHS has provided for the private and public sector to “understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter.” Emphasis added. These Webinar materials include specific tools designed to aid employers in creating and updating policies and procedures to prevent and respond to active shooter scenarios.

Issues covered in the materials include the following:

  • Profile of an active shooter;
  • Responding to an active shooter or other workplace violence situation;
  • Training for an active shooter situation and creating an emergency action plan; and
  • Tips for recognizing signs of potential workplace violence.

The materials include a desk reference guide, a reference poster, and a pocket-size reference card.

By utilizing these materials, employers may help prevent harmful workplace violence incidents. Conflict resolution training and employee assistance programs can help reduce the likelihood of workplace violence and active shooter scenarios.  Employee training and emergency preparedness can help minimize the harm from incidents and ensure that employees safely exit the workplace.

These measures also will help insulate employers from negligence claims alleging a failure to maintain a safe work environment for employees. Consider also that under the Occupational Safety and Health Act, employers must protect employees from known hazards in the workplace.  Employers who fail to implement measures to prevent workplace violence may face citations and increasingly aggressive OSHA enforcement actions.

Accordingly, employers should review DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Empty Hooks In A Meat Processing FactoryThe Occupational Safety & Health Administration recently issued its “Inspection Guidance for Poultry Slaughtering and Poultry Processing Establishments” (October 28, 2015).

OSHA explains in the Guidance that workers employed in the poultry industry may face many hazards, including high noise levels, dangerous equipment, musculoskeletal disorders, and hazardous chemicals. Poultry processing is highly mechanized, so walkways may be adjacent to conveyors. Processing meat uses a large amount of water that may splash on walkways and stairs. The addition of scraps of fatty skin from the poultry carcass can create slippery surfaces.

OSHA indicates that it believes that poultry workers suffer serious injury at a rate that is almost double private industry. Also, OSHA contends that “musculoskeletal disorders are of particular concern and continue to be common among workers in the poultry processing industry.”

In a multi-agency cooperation, the Guidance specifies that OSHA inspectors (CSHOs) should identify if the poultry processing plant has adopted the United States Department of Agriculture (USDA) New Poultry Inspection System (NPIS). Facilities that have adopted NPIS submit an annual attestation to the management member of the local Food Safety Inspection Service (FSIS) circuit safety committee, stating that it maintains a program to monitor and document any work-related conditions. The elements of this program include:

  1. Policies to encourage early reporting of symptoms of work-related injuries and illnesses;
  2. Notification to employees of the nature and early symptoms of occupational illnesses and injuries, in a manner and language that workers can understand, including by posting in a conspicuous place or places where notices to employees are customarily posted, a copy of the FSIS/OSHA poster encouraging reporting and describing reportable signs and symptoms;
  3. Monitoring on a regular and routine basis of injury and illness logs, as well as nurse or medical office logs, workers’ compensation data, and any other injury or illness information available; and
  4. A commitment to issuing FSIS notice, “Procedures for Notifying the Occupational Safety and Health Administration (OSHA).” The notice establishes a procedure for FSIS inspection personnel to notify OSHA directly of serious workplace hazards that may affect non-federal establishment personnel in meat and poultry products establishments and in egg product plants.

The Guidance reviews numerous alleged issues regarding musculoskeletal disorders and outlines potential means to reduce risk factors.

The Guidance includes a sample “alleged violation description” for potential ergonomics hazards with recommended abatement action and “additional methods of reducing the ergonomic hazards.” This section of the Guidance may be of particular interest to employers because it provides insight into the hazards OSHA believes exist (before they enter the work place) and now OSHA views abatement.

Note that the guidance directs that because “these hazards have been identified nationwide,” State Plans are expected to follow the guidance provided in this memorandum.

Employers in this industry sector need to be zealous to review and update their safety and training programs to encompass the issues covered in this Guidance.  You may be certain that the Agency’s inspectors will be looking for that too. The Guidance is also of interest to employers in other industries because it provides insight into OSHA’s focus on and approach to potential ergonomic hazards.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

iStock_000011654038_LargeThe Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), has posted its Fiscal Year (FY) 2014 enforcement Facts and Figures.

During FY 2014 the Bureau conducted 4,006 explosives compliance inspections. Of those, ninety percent were either “no violations” (69.4%) or “other” (19.6). “Other” was defined as “out of business, etc.”

Of the remaining explosives compliance inspections, there were reports of violation in just 7.2%, a total of 287 cases. Warning letters issued in 2.7% of the inspections, representing 109 cases. Only in 0.8% of the inspections, just 34 cases, were there warning conferences held. Ten cases involved revocation of explosive licenses being sought, in only 0.2% of the inspections.

These statistics show that while the industry overall is doing pretty well in explosives compliance inspections, there remain some issues that employers need to stay on top of. Make the effort to stay in compliance and avoid an ATF enforcement action.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

iStock_000011654038_LargeThe Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), in its recent ATF EXPLOSIVES Industry Newsletter, informed the industry of a new voluntary “process to better track industry-owned explosives storage magazines.”

The Bureau noted that during natural disasters, local emergencies, and civil unrest, the ATF assists emergency responders in securing nearby explosives. In these situations, the ATF provides information on the location of explosives magazines within an affected area. According to the ATF, with the current processes, “it is difficult to identify industry-owned magazines across the country in a timely manner for emergency notifications.”

The ATF indicates that a significant obstacle to emergency responder notification is the lack of a unique identifier for each industry magazine. Although the ATF maintains GPS coordinates for magazines, the coordinates “can’t be used as unique identifiers since readings can vary slightly from one inspection to another, and the coordinates sometimes refer to groups of magazines.”

The ATF has announced that after consulting with explosives industry members and associations, it will, with the “voluntary participation of industry members,” have Industry Operations Investigators affix “small labels with unique numbers to interior magazine walls during routine inspections.” The ATF will also replace damaged, missing, or destroyed labels during subsequent inspections. The ATF states that this program will not place any burden or responsibility upon industry members or change their internal magazine designations.

The labels, as shown in the sample below, “will not contain other information or electronically track the magazines.”

ATF Label

While the new labeling program is voluntary, the ATF is encouraging licensees and permittees to participate to ensure the success of the program.