By Eric J. Conn and Dan C. Deacon
The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat. The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014. OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.
Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual. The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.
In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years. Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.
The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy. OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading
By Dan C. Deacon and Eric J. Conn
As of January 2, 2018, civil penalties for workplace safety and health violations issued by federal OSHA increased again by 2% across the board. Although a 2% increase does not shock the system, this increase is part of a program that has resulted in OSHA’s civil penalty authority nearly doubling since 2016.
History of Civil Penalty Adjustments
As I sit here this afternoon wondering if the government will shut down over disputes about immigration and healthcare, I am reminded of a time just a couple of years ago, in late 2015, when we were again on the verge of a government shutdown over abortion rights and deficit spending. That shutdown was averted thanks to a backroom deal between outgoing Speaker of the House John Boehner and President Obama, which ultimately took the form of the Bipartisan Budget Act of 2015. That “kick the can down the road” measure included a controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor. It was called the “Federal Civil Penalties Inflation Adjustment Improvements Act,” and it mandated that executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.
On June 30, 2016, the Department of Labor issued its Interim Final Rule to implement the Civil Penalty Inflation directive. OSHA’s civil penalty authority had been stagnant for as long as any other agency, not having been increased for 25 years (since 1990), so this “catch-up” penalty increase for OSHA was the most significant. Indeed, following the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by the same percentage increase as the growth from the 1990 Consumer Price Index – Urban (CPI-U) to the October 2015 CPI-U, which was nearly 80%:
In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, OSHA’s Interim Final Rule, the Federal Civil Penalties Inflation Adjustment Improvements Act also required Continue reading
By Eric J. Conn and Dan C. Deacon
In the final year of the Obama Administration, OSHA published a controversial amendment to its Injury and Illness Recordkeeping Rule known as the “Improve Tracking of Workplace Injuries and Illnesses” Rule. As published last year, the new Final Rule significantly changed employers’ obligations under OSHA’s recordkeeping scheme. Among other hotly contested provisions, the new rule would require employers, beginning July 1, 2017, to proactively submit their employee injury and illness recordkeeping data to OSHA, so that OSHA could publish the data for all the world to see.
In a dramatic, but not unexpected, move last week, OSHA suspended this controversial data submission requirement with no word on when – or whether – a new deadline would be set for the data submission.
Telltale signs that the new Administration was rethinking the data collection requirement, and especially the plan to publish data, were clear well before last week. OSHA stated at the time the rule was published in May 2016 that it would develop a secure portal into which employers would submit the data, and that the portal would be live by February 2017, well in advance of the July 1st data submission deadline. We understand the development of the database was completed, and learned that OSHA beta-tested the portal with the help of a few major national employers and employer organizations.
Nevertheless, Winter and Spring came and went with no public sign of the secure data portal, or update from OSHA about how precisely the database would function or when it would go live. Since we are so close to the July 1st submission deadline and still no database with which employers could begin to get familiar, it was not surprising that on May 17th, OSHA updated its website to officially announce a reprieve from the looming July 1st deadline, stating:
OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.
Our expectation is that the new Administration will Continue reading
Employers should be cautious of an email that has been circulating to numerous employers around the country that appears on its face to be a request from OSHA to download a guidance document about “Safety & Health at U.S.: Protecting Workers and Employers” in order to avoid being fined.
The email, which is not sent from a Department of Labor (“DOL”) email address, contains a newsletter clipping that has both the DOL and the Department of Health and Human Services (“DHHS”) logos at the top. It claims that the recipient employers have been selected in a database to receive this guidance document, and that they will receive “an unannounced, onsite inspection” to investigate whether they are meeting Safety & Health Requirements.
OSHA has confirmed that this email was not sent by the Agency. Employers should NOT click on any of the links in the email, should immediately delete it, and should run a virus scan. It is believed to be a phishing scam similar to ones that have plagued employers in the past. OSHA states that it will investigate and potentially refer the matter to the Department of Justice for a criminal investigation.
Using OSHA as a front to trick employers has been a ploy scam artists have used in the past. For example, Continue reading
By Daniel C. Deacon and Kara M. Maciel
Workplace violence has become a serious issue for employers throughout the United States. In the wake of the recent mass shootings that occurred in San Bernardino, CA and Hesston, KA, both of which occurred at least in part at an employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented. Although these two incidents may not have been foreseeable or preventable, these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.
Workplace violence can be categorized in three ways:
- Violence by an employee;
- Violence by a stranger; or
- Violence by a known third party.
Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action. In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties. However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.
Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence. This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading
By Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice
OSHA announced in a November 30, 2015 Press Release, that it is seeking public comment on its updated voluntary Safety and Health Program Management Guidelines, described by OSHA as:
“providing employers and workers with a sound, flexible framework for addressing safety and health issues in the workplace.”
Comments about the draft Guidelines are due by February 15, 2016, and OSHA has stated its intention to hold a public meeting in March 2016 to receive further comment on the guidelines. OSHA’s projected final release date for the revised Guidelines is sometime in the Spring or Summer of 2016, before the end of President Obama’s second term.
Dr. David Michaels, the Assistant Secretary of Labor for OSHA, an epidemiologist by training, is a big believer in the value of data. From our experience, he loves to analyze quantitative data and set policy based on this analysis. A primary reason for the resurrection and revision of the H&S Management Guidelines, we suspect, is the strong correlation Dr. Michaels has found between the application of sound safety and health management practices and lower rates of incidents of occupational injuries and illnesses.
OSHA’s analysis shows that where effective safety and health management is practiced, injury and illness rates are significantly less than rates at comparable worksites where safety and health management is weak or non-existent. Hence, before he leaves office, it is no surprise that Dr. Michaels has Continue reading