Introducing CMC’s California Workplace Violence Prevention Compliance Solutions

Theresa Green Leave a comment

On September 30, 2023, California Governor Newsom signed SB 553 – a sweeping new law addressing Workplace Violence Prevention in virtually all California workplaces.  California employers (unless they fall under one of the limited exemptions) will be required by July 1, 2024, to:

    • Establish, implement, and maintain an effective workplace violence prevention plan
    • Perform a workplace violence-specific hazard assessment of your workplace and operations
    • Conduct an investigation of every incident of workplace violence (broadly defined)
    • Generate investigation reports of every incident of workplace violence
    • Create and maintain Violent Incident Logs
    • Provide annual interactive employee and supervisor training
    • Maintain (and produce upon request) program-related records for various periods

These requirements may seem straightforward; however, compliance pitfalls await employers who fail to delve into them deeply, and responses to workplace violence incidents may expose employers to legal claims in other areas of the law. To that end, Conn Maciel Carey’s California Practice has created several options to assist employers with compliance.

A Full Turnkey Workplace Violence Prevention Program Solution

We are pleased to offer a flat fee turnkey Workplace Violence Prevention Program which will include the following materials and services: Continue reading →

Update About OSHA’s Worker Walkaround Designation Process Rulemaking

Eric J. Conn Leave a comment

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Back in Q1 of 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule, and we have been tracking the rulemaking on the OSHA Defense Report blog since that time.  Specifically, the Worker Walkaround Representative Designation Process rulemaking proposes to amend the existing regulation at 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of the existing regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer being inspected, to now allow non-employee third parties to act as representatives; and
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” to accompany an OSHA compliance officer during an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The specific reference in the regulation to these technical credential has meant that only representatives with relevant technical expertise, credentials, or unique language skills have been permitted to accompany OSHA.  The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives can play during the inspection. The OSH Act and the existing regulation speak in terms of the employee representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA, etc.

Conn Maciel Carey’s national OSHA and Labor & Employment Practice Groups formed the Employers Walkaround Representative Rulemaking Coalition, composed of a broad and diverse group of employers and trade associations representing many industries, including retail, manufacturing, petroleum refining, construction, food manufacturing and distribution, agricultural, and more, with millions of employees across thousands of workplaces in every state in the US. On behalf of that rulemaking coalition, we recently submitted a comprehensive set of written comments to OSHA’s rulemaking docket.  In this post, we provide you with a summary of our comments that detailed:

  1. The concerning ways the proposed rule would impact employers;
  2. How the proposed rule conflicts with the OSH Act, the National Labor Relations Act, and the US Constitution; and
  3. How the rulemaking process has violated the Administrative Procedure Act and Executive Order 12866

The written comments submitted on behalf of the Employers Walkaround Representative Rulemaking Coalition, available here (https://www.regulations.gov/comment/OSHA-2023-0008-1976), present our concerns that the Proposal would open a flood gate to a multitude of workplace disruptions.  Specifically, we explained how: Continue reading →

Happy Thanksgiving from Everyone at CMC!

Theresa Green Leave a comment

 

With Gratitude

From Your Friends at Conn Maciel Carey

As we reflect on all that we are thankful for this Thanksgiving, we want to express our genuine appreciation for your continued support. It is clients like you who make it all worthwhile. Thank you for being a part of our CMC family! Wishing you a joyous and peaceful holiday.

New Memorandum of Understanding Between OSHA and the NLRB Will Drive Coordinated Enforcement Efforts

Eric J. Conn Leave a comment

By Kimberly Richardson and Eric J. Conn

On October 31, 2023, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) signed a new Memorandum of Understanding (MOU) to coordinate investigations and other enforcement activities. The agencies’ coordinated enforcement applies not only to protections afforded to employees under the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA), but it also applies to the 20 plus whistleblower laws that OSHA is charged with enforcing. The OSH Act and the NLRA both include protections for workers who complain to management about unsafe or unhealthy working conditions.

The purpose of the MOU is to:

“facilitate interagency
cooperation and coordination between the [NLRB] and [OSHA] by
establishing a process for information sharing and referrals, training, and outreach between
the agencies concerning the [NLRA], 29 U.S.C. 151 et seq., the
[OSH Act], including, but not limited to, its
anti-retaliation provision, section 11(c), 29 U.S.C. 660(c), and any current and future
statutory protections which OSHA is charged with enforcing, including various
whistleblower provisions.”

Under the new MOU, OSHA and the NLRB agreed to the following:

  • Information Sharing. OSHA and the NLRB and OSHA may, either upon request or upon one of the agency’s own initiative, share information or data that supports enforcement mandates regardless of whether the information or data was obtained through investigations or from other sources.
  • Coordinated Investigations and Inspections. Where OSHA or NLRB suspects there are overlapping statutory violations at issue, they will coordinate investigations and inspections with the other “in appropriate cases and to the extent allowable under law.”
  • Informing Employees About Their Rights. The MOU provides guidance for OSHA and NLRB staff on how to inform complainants and charging parties of their rights under the NLRA and any act enforced by OSHA, and how to contact the appropriate agency for further assistance. Continue reading →

OSHA Nears the End of the SBREFA Phase of its Outdoor and Indoor Heat Illness Prevention Rulemaking

Beeta B. Lashkari Leave a comment

By Eric J. Conn and Beeta B. Lashkari

For the better part of 2023, OSHA has been working through the Small Business Regulatory Enforcement Fairness Act (SBREFA) phase of its rulemaking to produce an Outdoor and Indoor Heat Illness Prevention Standard.

The SBREFA process is conducted by a Small Business Advocacy Review (SBAR) Panel composed of representatives from OSHA, the Office of Information and Regulatory Affairs (OIRA) within the White House’s Office of Management and Budget (OMB), and the Office of Advocacy (Advocacy) of the Small Business Administration (SBA).  The SBAR Panel’s primary role is to collect input from Small Entity Representatives (SERs) and report and on the comments of SERs and the Panel’s findings as to issues related to small entity impacts and significant alternatives that accomplish the agency’s objectives while minimizing the impact on small entities.  After the SBAR Panel meetings conclude, the panel writes and issues a report, which is delivered to the Head of OSHA for consideration.  The report typically includes the panel’s findings and recommendations, as well as the list of SERs, the SERs’ written comments, results of any polling questions asked during the meetings, and the documents provided to the SERs.

SBAR Panel Reports contain recommendations for OSHA on the Panel’s analysis and on possible approaches to regulatory action that may minimize impacts on small entities. Of course, while focused on small entities, the report has significant implications for industry as a whole.

The SBREFA process for OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is nearing its conclusion.  The SBAR Panel convened numerous meetings SERs, received significant written comments from those SERs, and last week issued its SBAR Panel Report, formally transmitting it to Doug Parker, Assistant Secretary of Labor for OSHA on November 3, 2023.  The 332-page report is linked here and on OSHA’s Heat Injury and Illness SBREFA webpage (see the red banner at the top of the page). Continue reading →

Announcing Conn Maciel Carey LLP’s 2024 Cal/OSHA Webinar Series!

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Announcing CMC’s Cal/OSHA Webinar Series!

California’s Division of Occupational Safety and Health (Cal/OSHA) is the most aggressive and enforcement-heavy approved State OSH Program in the nation, and as a result, California employers face a host of requirements that other employers around the country do not. Given that Governor Newsom signed a slew of new bills – including SB 553 Workplace Violence Prevention – most employers stand to be impacted by at least one new standard. In addition, California continues to experience regular changes in the employment law landscape through new legislation and decisions from the California courts. Accordingly, employers should do their due diligence to understand and adhere to their new compliance obligations.

Conn Maciel Carey LLP’s complimentary 2024 Cal/OSHA Webinar Series, which includes at least quarterly programs put on by the Cal/OSHA attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into what you can expect in the coming year from the latest legislative and rulemaking developments at Cal/OSHA.

To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2024 series, click here to send us an email request, and we will get you registered.  Please note, that registration for the In-Person Cal/OSHA and California Employment Law Summit is separate from the webinar series. See the description below for more details.

If you missed any of our programs from the past eight years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings.  If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in the Cal/OSHA webinar series or any other important Cal/OSHA-related topic, please do not hesitate to contact us.

California’s New WVP Law

Thursday, November 9, 2023

 Cal/OSHA Mid-Year Update

Wednesday, May 22, 2024

Enforcement and Regulatory Update

Tuesday, December 12, 2023

Preparing for and Managing Inspections

Wednesday, August 21, 2024

Top Cal/OSHA Violations

Wednesday, February 21, 2024

Cal/OSHA and Employment Law Summit

October 2024 – Date(s) TBD

Annual Cal/OSHA Enforcement and Regulatory Update: Are You Ready for 2025?

Thursday, December 5, 2024

See below for full program descriptions.

Continue reading →

Conn Maciel Carey LLP’s Cal/OSHA and California Employment Law Practices Bolstered by Addition of Highly Regarded Attorney Andrea O. Chavez

Theresa Green Leave a comment

Conn Maciel Carey LLP, (CMC) a boutique law firm with national practices in Labor and Employment Law, Workplace Safety Law (OSHA and MSHA), and Litigation, is pleased to announce that Andrea O. Chavez has joined the Los Angeles, California office as Senior Counsel in the firm’s Cal/OSHA and California Labor and Employment practices. She is in her seventh year of practice and brings her experience to the firm’s expanding California team.

“I represent employers in state and federal court and before administrative agencies in employment and safety-related disputes. This includes employment discrimination, wage and hour class action, NLRB, Cal/OSHA, and federal OSHA matters,” Ms. Chavez says. “I also focus on counseling employers on all matters related to managing employment relationships.”

CMC welcomes Ms. Chavez to CMC’s Southern California office. She joins the firm’s leadership team on the West Coast, alongside attorneys Megan Shaked and Rachel Conn based in Northern California. Continue reading →

Tips and Strategies for Safety-Related Incident Investigation and Audit Reports [Webinar Recording]

Theresa Green Leave a comment

On Thursday, October 5, 2023, Eric J. Conn and Nicholas W. Scala presented a webinar regarding Tips and Strategies for Safety-Related Incident Investigation and Audit Reports.

Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator or plaintiffs’ attorney demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities at all or conduct thorough investigations.

This webinar explored the benefits of conducting audits and investigations at the direction of counsel so as to improve safety and compliance while also protecting the company and management from adverse use by 3rd party litigants or regulators. We reviewed audit and investigation and report-writing strategies and best practices. We also reviewed OSHA’s policy on self-audits and the reality of OSHA’s use of voluntary self-audits during inspections. And we reviewed best practices to manage MSHA’s unlimited lookback period for enforcement.

Participants in this webinar learned: Continue reading →

[Special Webinar Event] California’s New General Industry Workplace Violence Prevention Law (SB 553)

Eric J. Conn Leave a comment

On Thursday, November 9, 2023, at 10 a.m. PT / 1 p.m. ET, join Rachel Conn, Megan Shaked, and Andrea Chavez of Conn Maciel Carey’s Cal/OSHA Practice, and a Special Guest Speaker (to be announced soon), for a special webinar event regarding California’s brand new General Industry Workplace Violence Prevention Law (SB 553).

Even while Cal/OSHA was working away on a General Industry Workplace Violence Prevention Rule, on September 30, 2023, California Gov. Gavin Newsom signed SB 553 – a sweeping new law addressing Workplace Violence Prevention in virtually all California workplaces.  California employers (unless they fall under one of the limited exemptions) will be required by July 1, 2024 to establish, implement, and maintain an “effective” written workplace violence prevention plan, investigate every incident workplace violence (broadly defined), create and maintain violent incident logs, conduct annual employee and supervisor training, and abide by additional recordkeeping requirements.  The new law also expands the circumstances when and the parties who may seek workplace violence restraining orders on behalf of employees.  Finally, the law requires Cal/OSHA to finalize the Workplace Violence Prevention rule that it has been crafting in short order.

Employers will need to work quickly to understand their new compliance obligations and develop and implement the onerous new requirements. This program will be a deep dive into the background of this new law, the new requirements, the other employment laws implicated by implementing a workplace violence prevention program, what to expect from Cal/OSHA moving forward, and tips and strategies for employers.

Participants in this special webinar event will learn: Continue reading →

OSHRC ALJ Decision in the Americold Logistics Case Highlights Importance of Safety Self-Audits

Aaron Gelb Leave a comment

Documented efforts to proactively audit and/or observe employees to confirm compliance with employer safety programs, policies, and procedures is, in our opinion, one of the most important aspects of a workplace safety and health program.  Not only do such efforts help prevent accidents and reinforce good behavior, but having documented records reflecting regular observations of safe work practices may enable an employer to negate OSHA’s prima facie case by preventing the agency from showing the employer had knowledge of the alleged violation.  Documented internal auditing/observations are also often the key to successfully asserting the employee misconduct defense in response to an OSHA citation.  I frequently emphasize this when speaking or writing about challenging standards like lockout/tagout (LOTO), personal protective equipment (PPE), and powered industrial trucks (PIT), as I all too often see employers expecting to get a citation vacated because they have an instance or two of some form of safety related discipline found by happenstance or because an accident occurred, not resulting from proactive, intentional audits.

A recent Occupational Safety and Health Review Commission (OSHRC) decision in which an Administrative Law Judge (ALJ) vacated a PIT citation illustrates the value of proactive audits and observations.  See Americold Logistics, LLC, No. 22-1400 (OSHRC Aug. 22, 2023).  In the case, OSHA, seeking to affirm a citation alleging that the employer allowed an untrained employee to operate a powered industrial vehicle (PIV) in violation of 29 CFR 1910.178(l)(1)(ii), argued that, while the company may not have had actual knowledge of the violation, it nevertheless had constructive knowledge.  Constructive knowledge is shown where OSHA establishes that the employer could have known of the cited condition with the exercise of reasonable diligence.  Whether an employer was reasonably diligent involves a consideration of several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.  Reasonable diligence, the ALJ explained, implies effort, attention, and action; not mere reliance upon the action of another.  As such, OSHRC has held that “[r]easonable steps to monitor compliance with safety requirements are part of an effective safety program.”

In Americold, the ALJ noted that the company, in addition to training and certifying its PIV operators, “took reasonable steps to monitor compliance with safety requirements.”  This included two forms of routine, documented monitoring of employee safety and performance – first, floor supervisors had to conduct three “behavior-based safety observations” per day followed by coaching, both of which were documented; and second, Americold required floor supervisors to conduct “coaching method observations” twice per day.  Americold was also able to demonstrate that, when safety violations were observed, employees were disciplined, including three employees terminated in the six months preceding the accident for rule violations related to PIV operation.  As a result, the ALJ held that OSHA failed to establish that Americold did not exercise reasonable diligence to ensure only trained individuals operate PIVs at its facility.

Employers looking to improve safety and obtain better outcomes when contesting citations would be well-advised to follow Americold’s example.  If you want to talk through what this would look like at your company, give one of the OSHA-focused attorneys at Conn Maciel a call.

[Webinar] Tips and Strategies for Safety-Related Incident Investigation and Audit Reports

Theresa Green Leave a comment

On Thursday, October 5, 2023, at 1 p.m. EST, join Eric J. Conn, Nicholas W. Scala, and Daniel C. Deacon for a webinar regarding Tips and Strategies for Safety-Related Incident Investigation and Audit Reports.

Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator or plaintiffs’ attorney demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities at all or conduct thorough investigations.

This webinar will explore Continue reading →

California’s Governor Newsom Signs SB 553-Workplace Violence Prevention Bill-Compliance Required by July 1, 2024 & The Latest Cal/OSHA Standards Board Updates

Megan Shaked Leave a comment

By Rachel L. Conn

SB 553 Becomes Law

On September 30, 2023, Governor Newsom signed a slew of new bills—including SB 553 Workplace Violence Prevention. All California employers (unless they fall under one of the few exemptions) will be required by July 1, 2024 to establish, implement, and maintain an effective workplace violence prevention plan. Full coverage of SB 553’s requirements can be found on CMC’s previous Cal/OSHA Defense Blog posts.

Cal/OSHA Standards Board Updates

In addition to the new workplace violence prevention requirements, the latest Cal/OSHA Standards Board meeting provided status updates on other important news and Cal/OSHA regulations.

Standards Board Members Update: Continue reading →

OSHA Proposes Rule that May Allow Union Organizers and Plaintiffs’ Attorneys to “Walk Around” Workplaces

Eric J. Conn 1 Comment

By Eric J. Conn and Mark Trapp

Earlier this month, OSHA issued a Notice of Proposed Rulemaking for a “Worker Walkaround Representative Designation Process” Rule, which would expand the circumstances when non-employees, particularly union representatives at non-union workplaces, can accompany OSHA inspectors during enforcement inspections.

The proposed rule would allow union representatives, other labor or community activist groups, and even plaintiffs’ attorneys (or their expert witnesses) direct and early access to non-union workplaces and employees, potentially as a front for organizing campaigns where they otherwise would not have access or to advance personally injury lawsuits. Similarly, the rule could allow competitors, contractors, or others onsite to employers’ detriment.

The Washington Legal Foundation featured an article by Eric J. Conn of Conn Maciel Carey’s national OSHA Practice and Mark Trapp of CMC’s Labor & Employment Practice about this development. Here is a link to the WLF article.

Employers OSHA Inspection Walkaround Rulemaking Coalition

With that backdrop, we understand that employers have a strong interest in having a seat at the table for this rulemaking.  To that end, Conn Maciel Carey’s OSHA Practice and Labor Law Practice are collaborating to organize a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable possible fed OSHA regulation about third party participation in OSHA inspections. Continue reading →

The Intersection of EPA’s New TSCA Chemical Exposure Limits and OSHA Enforcement of Workplace Chemical Exposure – Employers Better Look Both Ways

Kate M. McMahon Leave a comment

By Kate M. McMahon and Darius Rohani-Shukla

This is the OSHA Defense Report blog, but today we are blogging about the Environmental Protection Agency’s TSCA regulations.  What do EPA’s TSCA regulation have to do with OSHA and workplace safety?  More specifically, what impact might EPA’s actions under TSCA have on OSHA’s enforcement landscape? Read further to find out what is happening that causes us to be writing about EPA and TSCA!

Over the last year, the Environmental Protection Agency (EPA) has taken several actions under the Toxic Substances Control Act (TSCA) demonstrating the agency’s avid interest in regulating chemicals in the workplace, an area traditionally considered within the jurisdictional authority and purview of this Blog’s beloved agency, OSHA.  EPA seems to be stretching its statutory authority under TSCA to muscle its way into a preeminent role in workplace safety and effectively leapfrog over OSHA in setting more stringent limits than OSHA has established with its Table Z limits for air contaminants in the workplace, found primarily at 29 CFR 1910.1000.  In fact, EPA is now proposing to Continue reading →

SB 553 – California Workplace Violence Prevention Bill Nears Becoming Law

Megan Shaked Leave a comment

By Rachel L. Conn

The California Legislature introduced SB 553 – workplace violence: restraining orders and workplace violence prevention – earlier this year despite Cal/OSHA’s regulation on Workplace Violence Prevention in General Industry (WPV Standard) nearing the last stages of the rulemaking process. SB 553’s original version tracked the current Cal/OSHA Violence Prevention in Health Care Standard (8 CCR 3342) instead of the Cal/OSHA General Industry WPV Standard. This was problematic because SB 553 had more extensive requirements than the Cal/OSHA draft WPV Standard.  It also included retail-specific provisions on shoplifter training and a prohibition on requiring workers who are not dedicated safety personnel from confronting suspected active shoplifters.

However, last week the bill was amended to align more closely with the draft Cal/OSHA WPV Standard. The bill passed committee on Friday and will now go to a full vote in the California Legislature. The latest version of the bill includes the following: Continue reading →

Join CMC’s Employer Coalition to Work on OSHA’s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)

Eric J. Conn 1 Comment

By Eric J. Conn and Mark Trapp

We wanted to reach out to notify you about OSHA’s latest gift to organized labor.  Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.”  Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.  Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.  Here is the existing regulatory text: Continue reading →

Cal/OSHA and California Employment Law Summit: The Latest Rulemaking, Legislative, and Enforcement Priorities

Theresa Green Leave a comment

You are cordially invited to attend the Cal/OSHA and California Employment Law Summit presented by Conn Maciel Carey LLP.

Conn Maciel Carey LLP’s Inaugural Cal/OSHA and California Employment Law Summit is an in-person program presented by the California-based attorneys in CMC’s national OSHA • Workplace Safety and Labor • Employment Practice Groups, to update California employers on important developments involving workplace safety and health issues in California.​

Learn How to Navigate California Requirements

Continue reading →

Enough On Fed OSHA, Here’s What to Know About the State OSH Plans [Webinar Recording]

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On Thursday, August 10, 2023, Aaron Gelb, Rachel Conn, Megan Shaked, Valerie Butera, and Victoria Voight presented a webinar titled Enough on Fed OSHA, Here’s What to Know About the State OSH Plans.

Twenty-two states have OSHA-approved state plans that cover both private and state and local government workers. State plans have their own penalty reduction policies and procedures that may differ from OSHA but must be at least as effective. While the regulations are often like OSHA, they are not identical – employers in state-plan states cannot assume that complying with federal OSHA regulations will suffice. Keeping up with the changes in policies and procedures in state plan states can also be challenging for employers. During this webinar, we discussed how state plans differ throughout the country.

Participants in this webinar learned: Continue reading →

Latest Cal/OSHA Updates: Revised Indoor Heat Illness Standard Released and Advisory Committee Meeting Recap

Megan Shaked Leave a comment

By Megan Shaked, Samuel Rose, and Rachel Conn

Revised Draft Indoor Heat Illness Standard Released

On August 4, 2023, the Standards Board issued its latest revised draft of the Indoor Heat Illness Prevention Standard. During the previous comment period, there was extensive discussion regarding lowering the temperature at which the regulation would apply. However, the latest revised draft maintains the 82 degrees Fahrenheit indoor temperature trigger. Nonetheless, there were notable changes: Continue reading →

Conn Maciel Carey LLP Elevates Megan Shaked to Partner

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Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Megan Shaked has been elevated to Partner.

Ms. Shaked, a seasoned employment litigator and Cal/OSHA practitioner based in San Francisco, CA, represents employers on a wide range of employment matters, including Cal/OSHA investigations and appeals of Cal/OSHA citations, claims of discrimination and harassment, wrongful termination, wage and hour violations, and whistleblower actions.  She also conducts workplace harassment prevention training, and counsels employers on workplace safety compliance, the development of employee handbooks, hiring and termination decisions, leaves of absence and accommodations, and wage and hour compliance.

Ms. Shaked was an integral part of the expansion of CMC’s California Practice when she joined the firm back in 2018.  And now she is a key player in the next big expansion of the firm’s California Practice. Continue reading →

Latest Cal/OSHA Updates: Prepare For A Packed Fall

Megan Shaked Leave a comment

By Rachel Conn, Samuel Rose, and Megan Shaked

During last week’s California Occupational Safety and Health Standards Board meeting, the spotlight was on silica. But an equally clear message was front and center throughout the meeting – Cal/OSHA has a packed rulemaking agenda.

Here’s the latest on Cal/OSHA rulemaking and what to expect in the coming months:

Silica Emergency Temporary Standard

The Standards Board granted, in part, Petition 597, to amend the current regulation on Occupational Exposures to Respirable Crystalline Silica (section 5204) via Emergency Temporary Standard (ETS) to address the growing number of reported cases of advanced silicosis among workers exposed to silica in engineered stone fabrication.

Following extensive public comment, Cal/OSHA argued that an ETS would be Continue reading →

2023 Mid-Year Review of OSHA Enforcement and Regulatory Developments [Webinar Recording]

Theresa Green Leave a comment

On Thursday, July 20, 2023, Eric J. Conn, Rachel Conn, Dan Deacon, and Darius Rohani-Shukla presented a webinar covering a Mid-Year Review of OSHA Enforcement and Regulatory Developments.

Having shared a series of predictions during our January webinar regarding OSHA’s expected enforcement and rulemaking priorities in Year 3 of the Biden Administration, we took stock of what has happened at DOL and OSHA during the first 6 months of 2023, discussed surprise developments, and looked ahead at the remainder of 2023 and beyond. We took a close look at enforcement trends, including new emphasis programs, and checked in on various rulemakings likely to impact the regulated community. At the same time, we evaluated what has been happening with OSHA’s budget and staffing trends.  Finally, we looked ahead to what employers can expect from OSHA over the balance of this presidential term.

Participants in this webinar learned: Continue reading →

White House Clears the Final Amended Electronic Recordkeeping Rule

Eric J. Conn Leave a comment

By Eric J. Conn and Daniel C. Deacon

The White House has given final sign-off on OSHA’s Amended Regulation — Improved Tracking of Workplace Injuries and Illnesses (aka the Electronic Recordkeeping or E-Recordkeeping Rule).  The Preamble and the Final Rule have been sent to the Federal Register for official publication. The rule package will appear in the Federal Register this Friday (July 21, 2023), but in the meantime, the Administration has posted a pre-publication version of the final rule package.  So we now have the final regulatory text, OSHA’s rationale for its final rulemaking decisions, and its analysis of the stakeholder comments about the proposed amended rule.  Here’s what we know.

Details About the Final Rule

The final amended E-Recordkeeping Rule will take effect on January 1, 2024.  The regulatory text and the Preamble make clear that because this final rule becomes effective before the next E-Recordkeeping submission deadline in 2024, OSHA intends for March 2, 2024 to be the first submission deadline for the new information required to be submitted under this rule.

Unfortunately, OSHA has included each of the proposed changes in the final rule, and even worse, it added in an element that goes beyond what had originally been proposed.  As a reminder, the proposed amended rule published by OSHA in March 2022 included three key revisions: Continue reading →

OSHA Launches Enforcement National Emphasis Program Targeting Warehouses, Distribution Centers and High-Risk Retailers

Eric J. Conn 2 Comments

By Eric J. Conn and Darius Rohani-Shukla of Conn Maciel Carey LLP’s National OSHA Practice

On July 13, 2023, OSHA announced a new enforcement National Emphasis Program focused on Warehousing and Distribution Center Operations.  The new NEP was signed-off by the Head of OSHA a month ago – on June 14, 2023 – so it became effective as of July 13, just as the public was first learning about it.  We have combed through the Directive for OSHA’s new Warehouses NEP and identified the following key information that warehouse operators and retailers need to know.

What motivated OSHA to Launch the Warehouses NEP?

Over the last ten years, warehousing and distribution centers have experienced tremendous growth, with the number of estimated employees in that industry nearly tripling from 2011 to 2021.  As part of that growth, the injury and illness rate in that space has also dramatically increased.  Specifically, OSHA’s perspective is that this NEP is warranted because of Bureau of Labor Statistics (BLS) data that shows that injury and illness rates for the establishments covered by the NEP are significantly higher than the overall industry average.  As a result, OSHA’s new Warehouses NEP is tailored to address the hazards in those workplaces that OSHA deems as posing the most safety and health hazards.

The Assistant Secretary of Labor for OSHA, Doug Parker, had this to say about the new Warehouses NEP:

“Our enforcement efforts are designed to do one thing: lead to permanent change in workplace safety.  This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”

What Employers are covered by this NEP?

This NEP targets warehouse-related industries as identified by seven NAICS codes, as well as a set of “high-injury retail establishments,” as identified by five NAICS codes.  Here are the specific warehouse industry segments covered by the NEP:

The so-called “high-injury rate retail establishments” are a subset of the retail industry with particularly high industry average DART rates; i.e., high rates of injuries and illnesses that cause days away from work, restricted duty, or job transfer.  They were included because OSHA believes they present the same or similar hazards as warehousing and distribution facilities, particularly in loading and storage areas.  Here are the specific retail industry segments covered by this NEP: Continue reading →

Preeminent Cal/OSHA Attorney, Rachel Conn, Joins Conn Maciel Carey as Chair of the Firm’s California Practice

Theresa Green Leave a comment

Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in Workplace Safety – OSHA/MSHA, labor and employment, and litigation, is delighted to announce that attorney Rachel L. Conn has joined the firm’s San Francisco, CA office as Chair of the California Practice.

Ms. Conn comes to CMC from Nixon Peabody, where she was the Head of the OSHA Practice. At CMC, Ms. Conn will lead the team representing California and national employers in inspections, investigations and enforcement actions involving Cal/OSHA, Federal OSHA, and other State OSH Plans, especially the West Coast DOSH states. With strong experience in labor and employment law, she will also help lead the California labor and employment defense practice. Continue reading →