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.

UFCW Seeks to Increase Chicken Costs by Slowing Down Processing Lines

Unions representing poultry workers are demanding the Department of Agriculture reject an industry petition to increase poultry line speeds in plants.

The National Chicken Council recently presented a petition to the UDSA to implement a waiver system that would permit young chicken slaughtering plants to operate without line speed limits imposed. Opponents of the petition say current speeds are already too fast and have a high rate of injury, i.e. carpal tunnel syndrome.

The United Food and Commercial Workers union president sent a letter to the USDA warning that faster line speeds would make the industry “dramatically less safe, both for workers and consumers.” But poultry industry experts say that allowing unlimited speeds would not compromise food safety and would give US plants more birds to process to keep up with foreign competitors.

The USDA “will continue to consider line speeds at establishments that are capable of consistently producing safe, wholesome, and unadulterated product and are meeting pathogen reduction and other performance standards.”

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.

President Trump’s Proposed Budget Eliminates Union-Funding Harwood Grant

President Trump’s budget slashed the Department of Labor’s funding from $12.2 billion this year to $9.6 billion next year. This equals a 21% cut. On the chopping block is the DOL’s Susan Harwood Training Grant Program. You don’t know what the Susan Harwood Grant is? I didn’t either.

The Susan Harwood grant gives out grants to nonprofit organizations to train workers in dangerous jobs. At least that’s what it’s supposed to do. Instead, labor unions and labor-affiliated advocacy groups – think worker centers – received millions of dollars from the grant program under President Obama.

Many people think there are problems with Harwood grants. For example, Restaurant Opportunity Center (ROC), a worker center, used grant money to urge employees to take action by “working with worker advocacy organizations to find successful ways to get your rights to decent pay and safer working conditions.” Seems like a blatant plug for union organizing to me.

One question I have is whether federal tax dollar grants should be used to further union organizing efforts. Seems like the House Appropriations Committee in the 114th Congress agrees because it concluded that the Harwood grant program is “inefficient and ineffective in achieving its intended purpose.” It’s intended purpose was to train workers in dangerous jobs not organize unions in the restaurant industry.

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.

Tesla Fights Back Against UAW Organizing Drive

A few weeks ago I mentioned that the UAW had Tesla in its crosshairs. And, as expected, it didn’t take long for Tesla to start fighting back. Tesla CEO Elon Musk recently spoke to some of his employees about the issue. First, he refuted the allegations of how unsafe the workplace is, specifically, that most employees in a specific job classification were out on medical leave at the same time due to various work-related injuries.

Next, he promised a frozen yogurt machine and an electric pod roller coaster machine. Now, those of you who follow this blog and/or regularly deal with labor relations knows that employers are not allowed to make promises of benefits to employees during a union organizing drive. Did Mr. Musk just break the law? Maybe. Maybe not. If the frozen yogurt and roller coaster machines were already in the works before the organizing drive started, he likely did not break the law. But that’s not for me to decide – I’m more curious what an electric pod roller coaster machine is….

In another ramp-up of staving off the union drive, Tesla (likely) registered domain names referencing Tesla, unions, and the UAW. I say Tesla likely registered these names because the domains use MarkMontior’s domain name privacy service – the same as Tesla (and this blog) while the UAW uses GoDaddy. Here are some of my favorite registered domains:

  • testlaunionfree.com
  • uawdestroysjobs.com
  • uawkillsjobs.com
  • uawsucks.com
  • unionfreetesla.com
  • uawrocks.com (really, Tesla?)
  • unsafetesla.com

That last name coupled with the public relations cry that workers were off sick show that the UAW has made safety a priority organizing theme. Is Tesla really that unsafe? Maybe. Do  Tesla workers need a union to make the place safer? No, that’s OSHA’s job.

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.

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 and Friends Publish Anti-Retaliation Joint Fact Sheet

“Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs. The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the National Labor Relations Act, “reinstatement and back pay are not available as legal remedies for employees who do not have work authorization.”

The Fact Sheet, curiously released a few days before the inauguration of President Trump, underscores what some may view as a tension between Trump’s immigration stance and the legal protections afforded to all workers. Given Trump’s focus on immigration reform, it should come as no surprise that the key federal agency players in the workplace law arena have united to remind employers that the anti-retaliation protections apply all regardless of immigration status.

Matt Austin who 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.