By James L. Curtis, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: Employers should prepare for the holiday shopping season and protect their employees from harm and injuries.

As the holiday shopping season approaches, OSHA has previously reminded retail and hospitality employers of the importance of taking safety precautions during the holiday season’s major sales events, such as Black Friday.

Holiday shopping has increasingly become associated with violence and hazards. There has been numerous instances of riots, shootings, and pepper-spray attacks in crowds looking for holiday deals.  In one case, a worker was trampled to death while a mob of shoppers rushed through the doors of a store to take advantage of a Black Friday sales event.  Events of violence and shooting at malls and retail establishments have become all too common in our society.  Additionally, retail distribution centers that fill customer orders are exceedingly busy at this time of year and often staffed with new and/or temporary workers.  Such increased staffing levels can lead to increased workplace accidents.

Under OSHA’s general duty clause, “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.”  To minimize injuries in the workplace during the holiday season, OSHA’s website on Holiday Workplace Safety provides employers with recommendations for crowd management plans and safe practices for retail distribution centers.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

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 Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: In a significant proposal, EPA moves to ban the use of TCE in aerosol degreasing and spot cleaning at dry cleaning facilities, as part of a larger effort to ban TCE in other industrial uses.

The U.S. Environmental Protection Agency is proposing to ban certain uses of Trichloroethylene (TCE) – one of the most commonly used solvents – because of alleged health risks from its use as an aerosol degreaser and for spot cleaning in dry cleaning facilities. 91 Fed. Reg. 91592 (Dec. 16, 2016). The proposed rule was issued under the recently-amended Section 6(a) of the Toxic Substances Control Act.

This is a significant and controversial step. Not only is this EPA’s first use of Section 6(a) in 25 years, it is EPA’s first use of the “new” Section 6(a), which was revised in June 2016. In addition to the current proposed ban, EPA has indicated it intends to issue a proposal to ban TCE in vapor degreasing, and will publish one final rule banning TCE use in aerosol degreasing, spot cleaning at dry cleaning facilities, and vapor degreasing.

TCE is a volatile organic compound (VOC) that is both produced and imported into the United States, with use estimated to be around 250 million pounds per year. TCE is a clear, colorless liquid with a sweet odor and it evaporates quickly. TCE is used industrially as a solvent, a refrigerant, and in dry cleaning fluid. The majority of TCE is used (about 84 percent) in a closed system as an intermediate chemical for manufacturing refrigerant chemicals. Much of the remainder (about 15 percent) is used as a solvent for metals degreasing. Only a small percentage accounts for other uses, including use as a spotting agent in dry cleaning and in consumer products.

While the use of TCE in aerosol degreasing and spot dry cleaning constitute the least common use of the solvent in the United States, under this current proposal, EPA will prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use these limited uses. However, EPA has indicated it is also developing a proposal to ban the use of TCE in other industries and in other operations with higher volume uses of the chemical (i.e., vapor degreasing). EPA’s final rule will includes the current proposed ban on aerosol use and spot cleaning in dry cleaning facilities, as well as the upcoming proposed ban on vapor degreasing.

The proposed ban on aerosol and dry cleaning uses includes requirements that manufacturers, processors, and distributors of TCE notify retailers and others in their supply chains of the prohibitions on use in aerosol degreasing and spot dry cleaning, and it is presumed the ban on vapor degreasing will have similar notification requirements.

Comments will be received on the proposed rule, Docket No. EPA–HQ–OPPT–2016–0163, until February 14, 2017.

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 Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Smart technology setSeyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

By Jeryl L. Olson and Patrick D. Joyce

Our retail clients with stores and warehouse facilities in the State of New York are warned that the State of New York Department of Environmental Conservation (NYDEC) has announced that it will begin enforcing regulations relating to hazardous waste against big boxes, supermarkets, pharmacies and other retailers which generate waste materials containing chemicals which are commonplace in household products, such as those in detergents, cosmetics, air fresheners, bug spray, and prescription and over-the-counter pharmaceuticals.

By hazardous waste regulations we mean those in New York set forth in Title 6, Chapter IV, Subpart B, Parts 370-372, which follow closely the federal Resource Conservation and Recovery Act (RCRA). In this article “RCRA” is used to denote both the New York and federal rules.

The upcoming enforcement initiative, which will include planned and unplanned inspections by NYDEC, formal Requests for Information, and other traditional state enforcement strategies, is very similar to the one waged against retailers in California over the past several years. (See related Seyfarth discussion in Retail Detail: New Rules Affecting Retail and Transportation Industry Reverse Logistics). California’s retail waste enforcement effort has led to significant penalties for retailers in California also imposing upon retailers the costs of developing and implementing technologies, systems, and processes to manage retail hazardous waste. The success (in terms of penalties) of the California enforcement initiative and the expected level of enforcement and penalties of the New York initiative is largely due to retailers’ failure to understand, and adhere to, hazardous waste regulations applicable to retail wastes.

The challenges of RCRA compliance for retailers often arise not from management of traditional maintenance wastes at stores and warehouses, but out of mismanagement of returned, damaged, out-of-date, and off-spec products and pharmaceuticals; retailers traditionally have failed to handle such products as “wastes” or “hazardous waste.” Retailers are just becoming aware that their wastes are subject to the same rules as, and must be managed in the same manner as waste at industrial facilities. Compliance for retailers is complicated by the fact that in addition to wastes generated at “big box” retailers, retail wastes are generated at thousands of small facilities, in small amounts, and must be managed by (occasionally seasonal) retail employees with little-to-no-training or experience in the management of hazardous waste. Additionally, retail wastes are generally managed in limited spaces in stores, and stores can have hundreds if not thousands of different products that can be potentially considered waste or hazardous waste. Finally, the costs of managing retail wastes (including transportation and disposal costs) are significant relative to the small volumes of waste generated in individual store locations.

Facilities that have long relied on “reverse logistics” for handling retail products that are out of date, damaged, recycled, donated or otherwise managed in the reversal logistics process will find that, as in California, such historical practice may not been seen by NYDEC as meeting RCRA requirements. While New York laws do not prohibit the use of reverse logistics (and NYDEC actually has on-line guidance about reverse logistics), NYDEC believes many retailers are not in compliance with RCRA requirements that apply to reverse logistics. Thus, retail facilities may have to make significant changes in their policies and processes for handling hazardous retail wastes that have previously been handled in the reverse logistics process.

Warned of the impending enforcement, retailers in the State of New York have an opportunity now to ensure their retail waste compliance program meets state and federal laws, and to avert or mitigate enforcement actions relating to improperly managing retail wastes. Under the NYDEP formal “Environmental Audit Incentive Policy” (CP-59), retail facilities who suspect they do not meet RCRA requirements can enter into an agreement with NYDEC to undertake audits to determine compliance, and thereafter to voluntary disclose, and correct non-compliance discovered in the audits. In return, the facilities who undertake the audits and correct deficiencies can significantly reduce penalties to TDEC, and are allowed to develop a strategy to achieve compliance in a reasonable period of time in the future. Retail facilities who do not want to take advantage of the voluntary audit/disclosure program should immediately ensure their programs for managing retail hazardous wastes meet all of the notification, labeling, segregating, containment, transport, manifesting, employee training, contingency planning and recordkeeping and reporting requirements applicable to retail wastes under RCRA. Retailers who have facilities in California, and therefore already have experience in developing RCRA compliance programs for retail wastes, should consider expeditiously implementing those programs in their retail facilities in New York.

To assist retailers in meeting retail waste requirements, NYDEC has developed several guidance documents, in the form of “plan outlines” and “checklists,” which detail the steps necessary for retailers and pharmacies to comply with RCRA.  Such guidance includes:

  • Facility compliance plans;
  • Facility employee training plans;
  • Guidance on management of universal waste; and
  • Use of reverse distribution with reverse logistics.

The NYDEC guidance is available on the NYDEC website, where NYDEC has also posted copies of briefings it conducted in 2014 for retailers warning of the enforcement initiative. The briefings are entitled “Briefing on RCRA and Pharmacies” (November 10, 2014) and “Briefing and Panel Discussions on RCRA Pharmacies and DEC’s Art Policy” (December 18, 2014).

We strongly encourage our retailers in New York to take the enforcement initiative seriously, and to promptly ensure retail facilities are handling retail hazardous waste in compliance with federal and state laws. Facilities who suspect they are not handling retail wastes in full compliance with laws should carefully consider availing themselves of the voluntary audit/disclosure process, and seek legal advice if assistance is needed in the process. In the event a facility has already received a notice of inspection, or worse, an enforcement notice, we recommend you discuss this with your Seyfarth Shaw attorney and/or another attorney promptly.

By James L. Curtis and Craig B. Simonsen

OSHA’s Assistant Secretary David Michaels has just “reminded” the chief executive officers and retail trade associations that it is “critical … to take safety precautions to protect workers who may be injured during the holiday season’s major sales events, such as Black Friday sales.”

Holiday shopping has increasingly become associated with violence and hazards. At one large national chain store in previous years “crowds who came looking for holiday deals came face-to-face with riots, shootings, and pepper-spray attacks”. CNN has noted that “violence marred Black Friday shopping in at least seven states, including California, where police say a woman doused fellow shoppers with pepper spray in a bid to snag a discounted video game console.”

In another  incident a worker was trampled to death while a mob of shoppers rushed through the doors of a big box store to take advantage of a Black Friday sales event. According to OSHA the store was not using the crowd management measures recommended in OSHA’s fact sheet – Crowd Management Safety Guidelines for Retailers, which provides employers with recommended elements for crowd management plans.

Michaels pointed out in his reminder that under the federal law “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings, should an accident occur.

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

Holiday shopping is increasingly becoming associated with violence and hazards. At one large national chain store last year “crowds who came looking for holiday deals came face-to-face with riots, shootings, and pepper-spray attacks”.  CNN notes that “violence marred Black Friday shopping in at least seven states, including California, where police say a woman doused fellow shoppers with pepper spray in a bid to snag a discounted video game console.”

These incidents add to a previous incident where a worker was trampled to death while a mob of shoppers rushed through the doors of a big box store to take advantage of a Black Friday sales event. According to the Occupational Safety and Health Administration (OSHA) the store was not using the crowd management measures recommended in OSHA’s fact sheet – Crowd Management Safety Guidelines for Retailers, which provides employers with recommended elements for crowd management plans.

OSHA’s Assistant Secretary David Michaels also sent a letter to the CEOs of fourteen major retail companies, saying that “crowd-related injuries during special retail sales and promotional events have increased during recent years.” “Many of these incidents can be prevented by adopting a crowd management plan, and this [OSHA] fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season.”

Michaels points out that under the federal law “employers are responsible for providing a place of employment free of recognized hazards that are likely to cause serious injury or death. OSHA encourages employers to plan for crowd management several weeks, or even months, in advance of sales events that draw large crowds. We recommend that employers and retail store owners adopt a plan that includes, at a minimum, the elements outlined in the fact sheet.”

In addition, the recently released U.S. Bureau of Labor Statistics (BOL) preliminary findings of the 2011 Census of Fatal Occupational Injuries Summary, notes that retail fatalities were sufficiently prominent as to be quantified. OSHA uses this data when developing strategies for what industries to focus OSHA’s enforcement efforts.

Retailers are advised to review and implement the OSHA suggestions for crowd management. Adopting, implementing, and training store employees on the crowd management plan will both lessen the risk of employee and shopper incidents, and will assist the employer in fending off potential OSHA enforcement proceedings.

By James L. Curtis

On March 12, 2012 OSHA issued yet another six figure citation to a large retailer.  This time OSHA cited the Dollar Tree, Inc. for $121,000 in penalties, including two “Repeat” citations.  This comes on the heals of six figure OSHA citations to Wal-Mart, Inc., Sears, Walgreens, Lowe’s, DeMoulas Super Market and Publix.  Given the number of large citations recently issued by OSHA, the retail industry can no longer shrug them off as isolated incidents, but rather must view this as a concerted enforcement trend.

Significantly, the OSHA citations are often not the result of an injury or significant accident, but rather are often the result of fairly mundane safety hazards being cited by OSHA on numerous occasions at different facilities over time.  For example, the current Dollar Tree citations relate to blocked exits and unsafe stacking of materials.  These are not the types of hazards that typically result in significant injuries and historically have not resulted in significant citations and penalties.  According to OSHA, Dollar Tree had been cited for similar hazards at other facilities in 2008 and then again in 2010.

Based upon this enforcement trend, retailers can no longer view safety issues at their various facilities in a siloed fashion.  Rather, if safety issues have been identified at one facility they must be communicated throughout the organization so that all facilities can identify any correct similar hazards.

Retailers must also resist the urge to simply pay citations that carry a relatively modest penalty.  For years many retailers have treated such citations as a cost of doing business.  However, OSHA’s current trend makes clear that even minor citations can and will come back to haunt the company.  Accordingly, retailers must evaluate the merits of any OSHA citation it receives.  If your investigation reveals defects in the citation, retailers must pressure the OSHA Area Director to withdraw the citation at the informal conference and pursue a notice of contest if necessary.