By Joshua M. HendersonIlana R. MoradyBrent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence.  While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely.  For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause.  Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager.  But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

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

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

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

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Ann Rosenthal, Associate Solicitor for the Occupational Safety and Health Division, delivered remarks from the Solicitor’s Office and stressed that the change in administrations would not lessen enforcement efforts by OSHA.  Ms. Rosenthal discussed highlights from the Solicitor’s Office from the last year that included cases involving workplace violence, fall protection, and criminal penalties for employers.  It is anticipated that the Department of Labor will continue to focus its efforts on prosecuting these types of cases.  Ms. Rosenthal also indicated, while responding to questions, that the new administration is considering eliminating regulations under the beryllium rule and record-keeping rule.

Tom Galassi, Director, Directorate of Enforcement of OSHA, is also here and discussed key enforcement initiatives. Generally, Mr. Galassi echoed the general tone of Ms. Rosenthal’s remarks, emphasizing that OSHA is not slowing down in its enforcement efforts.  Accordingly, Mr. Galassi covered rising penalties, which continue to sharply increase.  Mr. Galassi highlighted that severe injury reports also continue to rise steadily, up from 10,887 to 11,590 reports last year.  Additionally, Mr. Galassi discussed two standards that were recently updated and have begun to be enforced by OSHA – the silica standard and walking work surfaces standard.  Both standards implement substantial burdens on employers and create compliance issues that impacts employers in a wide array of industries.

Mr. Galassi also stressed OSHA’s increasing budget and goal to increase the agency’s reach.  To that end the agency added over 70 employees last year comprised of enforcement and compliance personnel.  As such, employers should be sufficiently prepared for enforcement efforts that will continue to rise from these additional resources.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation 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 Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

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

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: In another example of OSHA’s refocus it has dropped from its home page the prominently placed listing of Worker Fatalities. 

We have blogged previously on changes to OSHA under the Trump Administration.  See for instance OSHA Schedules First “Safe + Sound Week”, OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years, and OSHA Rescinds its Union Non-Employee “Walk-Around” Rights Interpretation.

For the past several years, OSHA had maintained a running list of workers killed on the job.  Near the top of its Internet home page, the list included deaths reported to OSHA, regardless of whether any OSHA violations were associated with the fatalities.

An example of that OSHA workplace fatalities notice is shown here:

Previous Website image captured from “Wayback Machine” at https://web.archive.org/web/20170823025608/https://www.osha.gov/

While any fatality is a tragedy, OSHA’s list could be misleading.  Hence, OSHA has removed from front and center this list of workplace fatalities.  The list now, off the home page, only includes items related to OSHA inspections.

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

By James L. Curtis and Craig B. Simonsen

Seyfarth SynopsisDue to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now been “returned” to the Senate for consideration.

President Trump’s nomination of Scott Mugno to head OSHA  was approved by Senate Committee on December 13, 2017, but it was not put to a full senate vote by the end of the year forcing a restart of the whole nomination procedure.  Accordingly, Mugno is back before the Committee on Health, Education and Labor and Pensions for another vote recommending that Mugno’s appointment proceed to a full Senate vote.  No new date for a vote is currently set which will continue to delay the new administration’s safety and health policies.

A copy of Mugno’s December 5, 2017, written statement before the Senate Committee is available for review.

We will continue to monitor the status of this nomination.

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, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just released several fact sheets applicable to industries regulated under the Crystalline Silica Standards in Construction Rule.

OSHA has recently released several silica dust fact sheets, including Controlling Silica Dust in Construction – Crushing Machines Fact Sheet (OSHA FS-3935 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used During Demolition Activities Fact Sheet (OSHA FS-3936 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used for Grading and Excavating Tasks Fact Sheet (OSHA FS-3937 – 2017), and Controlling Silica Dust in Construction – Large Drivable Milling Machines (Half Lane and Larger) Fact Sheet (OSHA FS-3934 – 2017).

The fact sheets reiterate OSHA’s position that when inhaled small particles of silica can irreversibly damage the lungs. The fact sheets describe dust controls that can be used to minimize the amount of airborne dust when using crushing machines and heavy equipment, as listed in Table 1 of the Respirable Crystalline Silica Standard for Construction.  Specific engineering controls listed are “wet methods,” and “dust suppressants,” and “exhaust ventilation,” and “operator isolation” such as “enclosed cab.”

We will continue to keep readers updated as this issue progresses.

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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2017 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2018 inflation adjustments which will nudge the penalties even higher.  83 Fed. Reg. 7 (Jan. 2, 2018).

Under the 2018 rule, the maximum OSHA civil penalties will be:

2017 Penalties 2018 Penalties
Other than Serious violations: $12,675 $12,934
Serious violations: $12,675 $12,934
Repeat violations: $126,749 $129,336
Willful violations: $126,749 $129,336
Failure to abate (per day): $12,675 $12,934

The new OSHA penalty amounts are applicable to OSHA citations issued after January 12, 2018, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

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

Seyfarth Synopsis: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.

In a decision this morning, the U.S. Court of Appeals for the District of Columbia has remanded the Silica Rule to OSHA, holding that “OSHA was arbitrary and capricious in declining to require [medical removal protection] for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”  The Court remanded the Rule to OSHA to reconsider or further explain those aspects of the Rule.  North America’s Building Trades Unions v. OSHA, No. 16-1105 (December 22, 2017).

This is a win for labor that had fought to have the measures included in the new Rule.  The Court rejected other challenges to the Rule raised by business and industry groups.

We have previously blogged about crystalline silica and this rulemaking, including OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards, OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

We will continue to keep readers updated as this issue progresses.

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.