Keep an Eye Out for These 3 OSHA Developments in 2018

Here are a few things employers should expect from the Occupational Safety and Health Administration (OSHA) in 2018:

  1. Budget Cuts: OSHA may face budget cuts because Republicans, who try to curtail big government spending, controls Congress and the White House. With fewer resources, OSHA will likely enact fewer regulations and limit their enforcement of existing regulations.
  2. Electronic Reporting Rule: OSHA issued a final rule that revised its record keeping and submission requirements to include electronic reporting of injuries and illnesses to OSHA for posting on OSHA’s website. The rule was initially set to take effect on January 1, 2017, but has been delayed repeatedly.
  3. Walking Working Surfaces: OSHA issued a new walking working surfaces rule that became effective on January 17, 2017 but many provisions had delayed effective dates. For example, provisions regarding training (May 17, 2017), testing and certifying anchorages (November 20, 2017), and installing fall arrest and ladder safety systems on existing and new fixed ladders (November 19, 2018). Employers should begin to make plans regarding how to comply with the new fall safety systems requirements by the November 19, 2018 effective date.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Grocery Store Hit with $500K in Safety Fines

The bulk of the citations against Trade Fair Supermarkets in Astoria and Jackson Heights sections of Queens, New York allege repeated violations for blocked exits, unguarded vertical ban saws used in preparing meats, and inadequate safety information and training for hazardous cleaning chemicals, including bleach and liquid detergent. The company was cited for many repeat violations because other stores had similar violations four years ago.

This case is a marker for the agency’s increased emphasis on holding employers with multiple locations responsible for repeat violations when it cites similar violations at related workplaces. Prior to the Obama Administration, each of a company’s locations was treated separately. Under Obama, OSHA focused on treating multi-locations of a single employer as a single location.

Let this also be a reminder that OSHA generally looks back five years from the date of citation to determine whether the company has been cited for similar violations. Prior to the Obama Administration, OSHA looked back 3 years. The company here was cited for repeat violations since it had similar citations 4 years ago. No one yet knows whether Trump’s OSHA will reinstate a 3-year look back period of continue with Obama’s 5-year period.

OSHA’s repeat citations can cost a company up to $126,749 per violation. Saving a few hundred dollars from a small fine, only to be set up for a $125,000 fine a few years later, is not a good trade off. Through a smart settlement or litigation strategy, employers can get citation items withdrawn, problematic, cited standard, modified, or violation language re-written to eliminate or mitigate the risk of future repeat violations.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

Union’s Right to Walk Around Your Company with OSHA Being Challenged in Court

Thankfully, the National Federation of Independent Business (“NFIB”) has challenged a rule that has been around for only a short period of time called the Union Walk Around Rule.

For background, when OSHA inspects a workplace, an OSHA Compliance Officer does a “walk around” where he literally walks around the workplace looking for violations of the OSH Act. Employers and/or their representative (OSHA consultant) are permitted to accompany the Officer during the walk around. Pursuant to the 2013 Union Walk Around Rule, a union official is permitted to accompany an employee during a walk around of a non-union workplace. Let me repeat that. A non-union workplace must allow a union official, whose job is to organize workers, complete access throughout the workplace during an OSHA inspection.

This is how it plays out: a union is trying to organize a workplace and some employees support the organizing drive. To show the employees that the union is working for them, the union instructs an employee to call OSHA and allege a violation of the OSH Act. There doesn’t need to be merit to the allegation; it’s just an allegation that triggers the OSHA investigation. When the inspector shows up to inspect, the union organizer is permitted to walk with the inspector. This grandstanding allows all workers to see the organizer, gives the organizer the opportunity to speak with workers while they are working, and provides an opportunity for the union to see “behind the scenes” of the company it is trying to organize.

NFIB argues that nothing in the OSH Act allows a non-employee to accompany the compliance officer. Stay tuned for the outcome. This will be interesting.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

NLRB to Refer Possible Violations to OSHA and Wage and Hour

You probably remember when I discussed how OSHA was referring claimants to the NLRB who had missed their statute of limitations to file an OSHA charge (“OSHA Actively Encouraging Employees to File Charges with the NLRB” – Employment Services Alert issued May 22, 2014). Thankful to OSHA for doing it a solid, the NLRB will now refer cases back to OSHA as well as to the Division of Wage and Hour.

According to Anne Purcell, Associate General Counsel of the NLRB, information obtained in NLRB investigations could suggest the presence of OSHA or FLSA violations if witnesses disclose facts indicating that an employer required employees to work in unsafe or unhealthy conditions or failed to properly pay employees for all the hours they work.

I fully anticipate Board employees to question workers about their pay and the safety of their working conditions while investigating alleged unfair labor practice charges. Board employees are not trained in the nuances of wage and hour law or the OSH Act, yet will make a preliminary determination whether either may have been violated. To quiet my cynicism of the NLRB being a one-stop-shop (which it doesn’t), Purcell said NLRB employees are not expected to be experts in the construction of the FLSA or the OSH Act, and they “should refer cases only where they believe that a possible violation of the OSH Act or FLSA presents itself.” So basically, solicit the information from employees and err on the side of caution by referring most cases to OSHA or Wage and Hour.

This is even more reason, though none was needed, that all companies, both union and non-union, must make sure all of their employment practices abide by all labor and employment laws.

OSHA Actively Encouraging Employees to File Charges with the NLRB

The Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) entered into a Memorandum of Understanding (MOU) whereby employees who file untimely complaints against their employers alleging violations of the OSH Act will be told to contact the NLRB. The statute of limitations to file a complaint with OSHA is just 30 days from the date of occurrence, but employees have 6 months from the date of occurrence to file unfair labor practice charges against their employers with the Board.

According to the MOU the Directorate of Whistleblower Protection Programs (DWPP) and the Office of the Solicitor (SOL) recommend that OSHA establish the following policy:

OSHA personnel will advise all complainants who have filed, or attempted to file, an untimely Section 11(c) complaint to also contact the NLRB to inquire about filing a charge alleging unfair labor practices. OSHA personnel must first follow their Region’s policy with respect to discussing the complainant’s rights under Section 11(c) and options with respect to untimely filed complaints (e.g. screen out or docket/dismiss).

After such discussions, OSHA personnel will then advise complainants regarding their ability to contact the NLRB. OSHA will advise the complainants that they may file a charge with the NLRB and that the NLRB time limit to file (6 months) is longer than OSHA’s (1 month) and therefore OSHA recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.

OSHA personnel are even supplied with the following talking points to advertise the NLRB to untimely OSHA complainants:

  • OSHA recommends that you contact the NLRB as soon as possible to inquire about filing a charge alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA). The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • You may also locate your nearest NLRB Field Office at http://www.nlrb.gov/who-we-are/regional-offices (OSHA may want to look up the nearest office and provide the number and address).

Untimely OSHA complainers will also receive a follow up letter from OSHA reminding them to reach out to the NLRB for support. Part of the follow up letter template provided to OSHA personnel reads as follows:

I regret that OSHA is unable to assist you further in this matter. However, OSHA recommends that you contact the National Labor Relations Board (NLRB) as soon as possible to inquire about filing a charge alleging unfair labor practices. The NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA). Employees are protected under the NLRA to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union. The NLRB time limit is 6 months from the unfair labor practice.

OSHA estimates that up to 600 complaints are untimely filed each year. While this agreement does not necessarily give workers a second bite at the apple for lodging complaints related to safety and health, it does solicit and encourage employees to pursue alternative avenues of filing legal actions against their employers – avenues employees would otherwise not likely know are available.

Of course, the NLRB is embracing the MOU and has issued its own intra-agency memorandum instructing its intake officers to record whether the unfair labor practice charge was a referral from OSHA. The Board has even encouraged its employees to assist in training OSHA personnel in the nuances of the National Labor Relations Act to further help OSHA identify and market the Board’s purpose to employees.

While some MOUs result in a tremendous increase in charges at certain agencies, other MOUs have no impact on other agencies. Time will tell whether this MOU will increase the number of unfair labor practice charges filed against companies. Nonetheless, many businesses could learn an advertising and growth lesson from the Board over the past few years. Even though unionization rates continue to decline, the National Labor Relations Board effectively markets its services, enjoys increased workloads, and receives larger operating budgets year after year.

Is the Federal Government Giving Increased Scrutiny to Non-Union Factories?

Representative Martha Roby (R-AL) is concerned that the U.S. Department of Labor is targeting Southern vehicle and auto-parts manufacturers because of their failure to unionize.

Southern automotive manufacturers are now subject to in-depth inspections as part of an OSHA regional emphasis program. This increased scrutiny comes a year after the agency announced union representatives may accompany OSHA officials when inspecting non-union sites – an organizing tactic unions now use.

Department of Labor Secretary Thomas Perez explained to Congress that Alabama’s auto-parts manufacturers in particular had seen about 4.5 occupational injuries per 100 workers, compared with the average of 3 per 100 nationwide. He used 2010 statistics. But 2012 statistics, the most recent available, shows that both Georgia and Alabama have a better safety record than the national average. Left unanswered is why did OSHA wait until 2014 to implement a regional emphasis program if it was truly concerned about 2010 injury statistics.

NYC Eyes Google Glass for Restaurant Inspections, is OSHA Next?

New York City has proposed to arm their investigators with Google Glass type eyewear for use when investigating workplaces. According to the City, having accurate video of the inspection is in everyone’s best interest. Will OSHA follow suit and provide Google Glasses to their inspectors? This is not a far leap of logic, since OSHA is actively looking for new ways to assist their investigators. For example, members of a union may accompany OSHA investigators when inspecting non-union companies.