Status of State Plan Implementation of OSHA’s E-Recordkeeping Data Submission Rule

By Eric J. Conn and Dan C. Deacon

OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires employers of  certain sizes that fall into certain categories to proactively submit electronic injury and illnesses data to OSHA through its new web portal – the “Injury Tracking Application.”  The new rule dramatically changes the responsibilities and impacts of OSHA’s long-standing injury and illness recordkeeping program.RK Fact Sheet

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months, used the data themselves to make decisions about how to reduce risk of injury and illness in their workplaces, and then stored the records in a cabinet or desk drawer for five years.  Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule

  1. All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
  3. All of the submissions to OSHA must be made electronically, via a purportedly secure website.
  4. OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible.

Note however, in this first year of the rule, for the upcoming data submission of 2016 injury data to be made in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a topic of discussion, and there remains some uncertainty whether employers will be required to electronically submit injury and illness data.  Continue reading

OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State” [Webinar Recording]

On August 15, 2017, Kathryn M. McMahon, Amanda Strainis-Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State”

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed much of Trump’s agenda with the phrase, “deconstruction of the administrative state,” meaning the system of regulations and taxes that the president says have stymied economic growth.  OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape.  This webinar will take a deep dive into the actions taken by the Trump Administration in conjunction with the Republican Congress to roll-back OSHA regulations or otherwise lessen the punitive influence of OSHA on our nation’s employers.  From the repeal of several Obama-era midnight rules, to a budget proposal that could gut OSHA’s enforcement efforts, to a series of Executive Orders that shift to a business friendly regulatory agenda.

This webinar addressed:

Continue reading

Trump Admin. Pumps the Brakes on New OSHA Rules in its First Regulatory Agenda

By Eric J. Conn, Chair of Conn Maciel Carey’s OSHA Practice

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed Pres. Trump’s agenda with the phrase: “deconstruction of the administrative state,” meaning the system of regulations the President believes have stymied economic growth. OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape, from the Congressional Review Act repeal of Obama-era midnight rules, to a budget proposal that could shrink OSHA’s enforcement efforts and prioritize compliance assistance, to a series of Executive Orders that shift OSHA to a business friendly regulatory philosophy.

And now, the Trump Administration has issued its first “Unified Agenda of Regulatory and Deregulatory Actions,” and the path to “deconstruction of the administrative state” is clearer.  The spring Unified Regulatory Agenda explains what agencies like OSHA and EPA will undertake on the rulemaking front, and the shift in the Dept. of Labor’s regulatory agenda for rules and standards affecting workplace safety is more pronounced than ever.  The new Regulatory Agenda places a bevy of Obama-era regulatory priorities out in the cold.  Among them, new standards to address infectious diseases in healthcare, various chemical exposures, and other broad-based initiatives have been canceled or placed on the regulatory back burner.

Here’s a breakdown of what Pres. Trump’s first Regulatory Agenda reveals about OSHA’s future plans:

Controversial Rules Off the Table

To the relief of industry advocates who spent years wringing their hands over OSHA’s aggressive rulemaking agenda during the Obama Administration, the new Administration put many of the Agency’s previous plans on ice.  This set of rules will not see further action for years.

For example, a comprehensive rule addressing combustible dust, which has been in the works for nearly a decade, is off the table. This rulemaking was spurred by a recommendation from the U.S. Chemical Safety & Hazard Investigation Board, and was pursued by top officials in the Obama-era OSHA.  The Trump Administration has removed it from the Regulatory Agenda.

Here are some of the higher profile OSHA rulemaking efforts that are now effectively dead in the water: Continue reading

Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues [Webinar Recording]

On July 11, 2017 attorneys from Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, delivered a webinar regarding Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues.”

Employers’ perceptions about their legal responsibilities for certain workers is not always reality.  Although an employer may classify workers as temporary workers or independent contractors, that does not mean the Department of Labor takes the same view.  At the tail end of the Obama Administration, DOL was vocal about its belief that most workers should be treated as employees, insinuating that in most cases, employers will be accountable for the specific obligations of an employer-employee relationship.  The Trump Administration is moving in the other direction, but a lot of questions remain unanswered or muddled.  DOL has also been cracking down on employee misclassification and division of responsibility among multiple employers. Additionally, employers continue to have certain safety and health related obligations and potential OSHA liability depending on their role at multi-employer worksites or in joint employer situations.

It is essential for employers to carefully evaluate the employment relationship and their own individual function in the multi-employer context.

This webinar covered:

  • Criteria used to evaluate the employer-employee relationship
  • Employers roles on a multi-employer worksite and the specific obligations associated with each role
  • Guidance on how to clearly establish an independent contractor relationship
  • How to lawfully and effectively manage temporary workers at your workplace

Here is a link to a recording of the webinar. Continue reading

“Masters of Disaster” Podcast re: Managing OSHA Compliance in the Trump Administration

In May 2017, Eric J. Conn sat down with Leona Lewis, Founder of ComplyEthic, to discuss the regulatory landscape at OSHA as we transition from Obama to Trump, and what employers should do to successfully navigate the new regulatory landscape, for a new segment on ComplyEthic’s terrific Podcast – “Masters of Disaster.”  Here is a link to the interview on the podcast.

Masters of DisasterThe Podcast segment was entitled “OSHA Regulation Under Trump Administration; What Companies Can Do,” and featured discussion about the differences in priority and approach between Obama’s and Trump’s OSHA, new regulatory strategies that may be available to employers, and what steps employers should take to prepare for and manage the new regulatory environment.

OSHA’s old “Standards Improvement Project” and Trump’s new Efforts to Slash Regulations [Webinar Recording]

On March 28, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s old “Standards Improvement Project” and Pres. Trump’s new Executive Orders to Slash Regulations.

OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards.  There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial.  Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.

What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids.  Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan.  Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations.  The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them.  Trump intends for these task forces to reduce what it deems expensive or unnecessary rules.  OSHA rules may be on the chopping block.

Participants in this webinar learned about:

  • The origins and intent of the Standards Improvement Project
  • A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
  • Use of the Congressional Review Act to repeal numerous Obama-era regulations
  • Pres. Trump’s executive orders designed to slash regulations
  • Other steps by the Trump Admin. to “Dismantle the Regulatory State”

Here is a link to a recording of the webinarContinue reading

Trump Proposes $2.5B Cut to Dept. of Labor’s Budget and Elimination of Chemical Safety Board

By Kara M. Maciel and Eric J. Conn

The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget.  The President’s proposed budget expressly calls for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities.  The budget plan also purports to shift more funding responsibility to the states with labor related programs.  Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.

These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion.  Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.

The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact on DOL’s ability to carry out both policy initiatives under former President Obama as well as many of the Department’s longstanding programs.

The business community welcomes Trump’s effort to rein in what has been viewed as an intrusive, enforcement-heavy Labor Department, but we caution not to count chickens yet. These proposed cuts will undergo heavy scrutiny by Congress before any budget is finalized. The President’s spending plan is only the first step in months of negotiations between the White House and both houses (and parties) in Congress. Pres. Trump will put forward a more detailed spending proposal in May, and various legislative committees will scrutinize his requests, calling on Cabinet Secretaries, Agency Heads, and others in the Administration to testify about or otherwise explain their spending needs and requests.

Key Takeaways from Trump’s Budget Blueprint

While the administration provided estimates for some of the proposed cuts, it did not specify where the majority of the budget cuts would come from.  What we do know is that the proposed budget would Continue reading

“OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission” – WLF Article

Washington Legal Foundation just published Eric J. Conn’s “Legal Opinion Letter” article regarding OSHA’s new “Volks Rule” attempting to circumvent the D.C. Circuit ruling limiting OSHA’s statute of limitations for injury and illness recordkeeping violations from 5½ years to six months.

Below is a summary of the article with an update about Congressional action scrutinizing the Rule, and here is a link to the full article.wlf-volks-article

In the waning days of the Obama Administration, OSHA promulgated a new rule purportedly “clarifying” employers’ continuing duty to correct injury and illness recordkeeping logs for the entire five-year period the logs must be kept. See 81 Fed. Reg. 91,792 (Dec. 19, 2016). The final rule, dubbed the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” amended OSHA’s existing recordkeeping regulations in order to circumvent a 2012 decision of the United States Court of Appeals for the District of Columbia in AKM LLC v. Secretary of Labor (Volks II), 675 F.3d 752 (DC Cir. 2012). This “clarifying” rule is unlawful and should be repudiated.

OSHA’s Injury and Illness Recordkeeping regulations require employers to record certain injuries and illnesses within seven days of the incident and also to preserve a copy of those records for five years. 29 C.F.R. Part 1904 et seq. Separately, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to issue citations alleging violations of regulations adopted under the Act. 29 U.S.C. §§ 651-678. The statute of limitations in the OSH Act states, however, that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).

The article provides a historical look at how OSHA interpreted and enforced its injury and illness recordkeeping regulations Continue reading

Pres. Trump’s Plan B for Secretary of Labor Nominee – Alex Acosta

By Jordan B. Schwartz

President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his nominee for Secretary of Labor.Department of Labor  However, on February 15, 2017, one day prior to his much-delayed confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation.  Mr. Puzder’s nomination was knocked off track by allegations that he failed to pay workers overtime pay, hired an undocumented worker in his home, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.

If confirmed as Labor Secretary, Mr. Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.  Mr. Acosta would also be the first Hispanic member of President Trump’s cabinet.

Mr. Acosta has a strong public service background.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Mr. Acosta served as

Continue reading

One of Obama OSHA’s Last Acts – An Update to the Walking-Working Surfaces Rule Decades In the Making

Kate M. McMahon and Eric J. Conn

On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century.  OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910).wws-final-rule  Begun in 1990, it took OSHA all of 27-years – longer than it takes the Agency to promulgate its comprehensive health standards, which is saying quite a bit.  But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.

While the new rule may fall prey to to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules.  The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders.  Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.

Significant Provisions of the New Standard

It is not surprising that the new rule by and large escaped industry legal challenge.  For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure.  Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance.  For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.

However, the new rule does impose some new requirements it is important to be aware of and understand.  Continue reading

Top 5 OSHA Issues to Track in 2017 [Webinar Recording]

On January 25th, attorneys from Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s 2016 in Review and the Top 5 OSHA Issues to Track in 2017.

The ball has dropped, the top-5-osha-issues-for-2017-cover-slideconfetti has been swept out of Times Square, and 2016 (and the Obama Administration) is in the books.  It is time to look back at the year and take stock of what we learned from and about OSHA over the past year.  More importantly, the question on everyone’s mind (well, maybe just ours), is what can we expect from OSHA in the first year of the Trump Administration?

This webinar event reviewed OSHA enforcement, rulemaking and other developments from 2016, and forecast the Top 5 OSHA Issues employers should monitor and prepare for in the New Year and the new Administration.

Participants learned the following: Continue reading

REMINDER: Feb. 1st Deadline to Certify and Post OSHA 300As: Four Common Mistakes Employers Make

By Eric J. Conn

This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

Specifically, by February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a RK 2summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading

Breaking News: MSHA to Publish Final Rule for Workplace Exams in Metal and Nonmetal Mines

By Nicholas W. Scala and Justin Winter, Co-Chairs of Conn Maciel Carey’s national MSHA Practice

As a parting gift from Joe Main, the departing Assistant Secretary of Labor for the Mine Safety & Health Administration (MSHA), MSHA released this week the final rule for Examinations of Working Places in Metal and Nonmetal Mines. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017.workplace-exam-rule

The effective date, when MSHA will begin enforcement of the new provisions within the final rule, is May 23, 2017 or 120 days following publication on January 23rd. Until the effective date, the existing provisions of §56/57.18002 will remain the standard for enforcement purposes.

Under the current standard mine operators must perform a workplace examination at least once per shift, maintain a record for twelve (12) months which must include the name of the examiner, locations of areas examined and the date.

The final rule, announced on January 18, 2017, will increase the responsibilities for mine operators to comply with the workplace exam standard. Effective May 23, 2017 operators must:

  1. Perform a workplace examination BEFORE any miners begin work in an area;
  2. Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
  3. Maintain a record of the examination for twelve (12) months, which includes:
    • The name of the examiner
    • Date of the exam
    • Locations examine;
    • Descriptions of any and all adverse conditions found during examination (even if corrected immediately)
    • Date of corrective action
  4. Make records available to MSHA inspectors AND miner representatives, providing copies upon request.

Continue reading

OSHA and Employment in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

By Jordan B. Schwartz and Eric J. Conn

OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.bathroom

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

OSHA Bathroom Requirements

In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:

  1. providing employees with prompt access to a bathroom; and
  2. ensuring the workplace bathroom is maintained in a sanitary condition.

Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading

Announcing Conn Maciel Carey’s Complimentary 2017 OSHA Webinar Series

2017-webinar-series-logo

As the Obama Administration turns out the lights and hands over the keys to the Trump team, OSHA’s enforcement and regulatory landscape is sure to change in significant ways, from shifting enforcement priorities, budgets and policies, to efforts to repeal or re-interpret controversial Obama Era regulations.  As a Washington outsider, what OSHA will look like under Pres. Trump is a greater mystery than perhaps under any other incoming President in OSHA’s history.  Accordingly, it is more important now than ever before to pay attention to OSHA developments.

Conn Maciel Carey’s complimentary 2017 OSHA Webinar Series, put on by attorneys in the firm’s national OSHA Practice Group, is designed to give you insight into the changes and developments at OSHA during this period of flux and unpredictability. 

To register for an individual webinar, click on the link below the program description. To register for the entire 2017 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the 2015 or 2016 OSHA Webinar Series, here is a link to an archive of recordings of those webinars.


OSHA’s 2016 In Review and
Top 5 OSHA Issues in 2017

Wednesday, January 25th

Joint & Multi-Employers, Contractors and Temps

Tuesday, July 11th

New Slips, Trips
and Falls Rule

Thursday, February 8th

FAR/DOL Contractor “Blacklisting” Rule

Tuesday, August 15th

Standards Improvement Project: Proposed Changes to LOTO

Tuesday, March 28th

Meet OSHA’s New
Leadership Team

Tuesday, September 12th

New Cal/OSHA
Enforcement Issues

Tuesday, April 11th

Addressing Employee
Complaints

Tuesday, October 17th

OSHA’s New E-Recordkeeping
& Anti-Retaliation Rule

Wednesday, May 16th

OSHA’s Fatality &
Injury Reporting

Tuesday, November 14th

Interpretations and Variances: Trump Era Regulatory Strategy

Tuesday, June 6th

OSHA PSM and
EPA RMP Update

Tuesday, December 12th

See below for descriptions of the
webinars and registration links

Continue reading

[Webinar] Bathroom Break: OSHA Bathroom Issues, ADA Accessibility, and Transgender Bathrooms

Presented by Kara M. Maciel and Eric J. Conn

On Tuesday, December 13, 2016 at 1:00 PM Eastern, join Eric J. Conn and Kara M. Maciel of Conn Maciel Carey’s national Labor and Employment and OSHA Practices, for a complimentary webinar regarding Employee Access to Sanitary Bathrooms, ADA Accessibility, and Transgender Bathrooms. bathroom-webinar-cover-slide

Although not historically a hotbed of OSHA / Employment law activity, access to bathrooms by both employees and members of the public has become a high profile issue of late.  OSHA has always required employers to provide employees with prompt access to sanitary toilet facilities, to minimize adverse health risks.  Recently, however, OSHA and other federal, state and local authorities began to prohibit discriminatory practices with regard to restroom access based on the principle that individuals have the right to use facilities consistent with their gender identity.  There are also a host of requirements under the Americans with Disabilities Act that must be met for a bathroom to be considered accessible and usable by an individual with a disability.  This webinar will review the requirements in these areas, and provide specific strategies to address this new and complex area of the law.

Participants in this complimentary webinar will learn about the following:

  • OSHA rules regarding accessibility to bathroom facilities and sanitation issues
  • Transgender workplace obligations
  • Federal Agency Interpretations of Title VII to include discrimination based on gender identity or transgender status
  • State laws regarding discriminatory practices in regard to restroom access
  • Best practices for overcoming typical bathroom ADA accessibility issues

Here is a link to register for this webinar.  If you missed Continue reading

Court Denies Motion to Stay OSHA’s Enforcement of Anti-Retaliation Elements of E-Recordkeeping Rule

By Eric J. Conn

By Law the Anti-Retaliation Provisions of OSHA’s New Electronic Recordkeeping Rule Become Effective December 1st — Tomorrow!

On November 28, 2016, the federal district court Judge in the Northern District of Texas hearing Industry’s legal challenge to the anti-retaliation portions of OSHA’s new electronic recordkeeping rule (i.e., limits on injury reporting requirements, post-incident drug testing, and safety incentive programs), pi-rulingissued an Order denying Industry’s motion for a preliminary injunction that would have prohibited OSHA from enforcing these controversial new provisions. The Court’s Order clears the way for the new provisions to become effective and enforceable as of December 1, 2016.

Accordingly, it is not only prudent but perhaps imperative that employers immediately evaluate their safety incentive programs; drug testing programs; management bonus compensation schemes; and injury reporting policies to determine whether they comport with the new rule.

The rule adds new language to OSHA’s injury and illness recordkeeping regulation at 29 C.F.R. 1904.35(b)(1):

“reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. . . .  [A reporting procedure] is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

Because this language is so broad and vague, it is impossible to understand from the face of the rule what policies and conduct are required or prohibited.  OSHA acknowledged that, as well, and Continue reading

OSHA Issues Guidance on Recordkeeping Anti-Retaliation Rule – Even with the Fate of the Rule in Question

By Eric J. Conn and Dan C. Deacon

OSHA’s new electronic injury recordkeeping rule includes anti-retaliation provisions that create new employer obligations and prohibitions related to internal employee injury reporting procedures, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions.  Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonusesRK Rule FRUntil very recently, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.

On October 19, 2016, OSHA issued a Guidance Memorandum offering its interpretation of the vague, controversial anti-retaliation provisions of OSHA’s new electronic injury and illness recordkeeping rule.  The timing of OSHA’s issuance of the October Guidance is particularly noteworthy, given developments in the legal challenge filed by Industry plaintiffs in a federal district court in Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D), which we have described in previous articles.  Specifically, just one week before issuing the Guidance Memo, OSHA deferred the enforcement effective date of the anti-retaliation provisions, for the second time, from November 1st to December 1st.  This second delay of the anti-retaliation rule was done at the specific request of the Texas judge overseeing the case, who is considering industry’s request for a Preliminary Injunction.

The Guidance is not unexpected.  Amidst growing frustration from Industry about the rule and its lack of clarity, OSHA promised last summer when it decided to first postpone the enforcement date from August 1, 2016 to November 1, 2016, to publish guidance explaining the new provisions.  Indeed, OSHA’s defense against Industry’s motion for a preliminary injunction against the rule is that there is no way Industry can show irreparable harm from the new rule because there was no way for employers to know what the rule actually prohibits and requires.

Before this Guidance Memo was released, OSHA had provided little understanding of precisely what Continue reading

FAR Council’s and Dept. of Labor’s Contractor “Blacklisting” Rule – Finalized and Promptly Stayed

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice

Texas District Court Enjoins the Administration from Enforcing the Federal Government Contractor “Blacklisting” Provisions of the Federal Acquisition Regulatory Council’s New Final “Fair Pay and Safe Workplaces” Rule.

On August 25, 2016, the Obama Administration, through the Federal Acquisition Regulatory (FAR) Council and in conjunction with the U.S. Department of Labor, promulgated the final Fair Pay and Safe Workplaces regulation and parallel guidance from the Labor Department, which collectively federal contractors have unaffectionately dubbed the “Blacklisting Rule.”  far-article-1The cornerstone provisions of the final rule establish expansive new reporting obligations for contractors bidding on executive branch contracts with an estimated value exceeding $500,000. These contractors, along with subcontractors whose portions of the overall contract meet the $500,000 threshold contract value, must disclose all confirmed and alleged violations issued under 14 labor laws, including alleged OSHA citations, within the three years prior to a prospective contractor’s bid submission, regardless of the status of the citation or whether the citation has yet been upheld in a judicial or administrative review process afforded employers.  To be clear, under the final rule, all OSHA citations must be reported, even minor paperwork citations characterized as “OTS” (“other-than-serious”).

The final rule change the manner in which the rule applies to subcontractors.  Unlike the proposed rule, the final rule requires covered subcontractors to disclose violations directly to the Department of Labor, which will conduct a “responsibility determination” and return it to the subcontractor, who in turn will then be required to deliver it to the prime contractor.  The final rule also pushed back the mandatory disclosure date for subcontractors to October 25, 2017, a year after the disclosure requirements were set to begin for prime contractors.

The disclosure requirements for all contractors apply equally to related state labor laws, which sweeps in all citations issued under the 27 federal OSHA-approved state OSH programs administered by state occupational safety and health agencies such as CAL/OSHA.  Whichever contractor is awarded a covered contract must also disclose any old and new OSHA or other alleged labor law violation (referred to in the regulation as “administrative merits determinations”) during regular, bi-annual reports throughout the life of the contract.

Rule Challenged and Preliminary Injunction Granted

Barely before contractors had time to read the regulation and attendant DOL guidance, however, and prior to its first effective date of October 25th, a group of industry trade associations filed a legal challenge in a Texas federal district court to the rule and requested the court grant emergency relief by Continue reading

Clinton or Trump? The Future of Employment Law and Workplace Safety Regulation

By Kara M. Maciel, Eric J. Conn and Nick W. Scala

What has evolved (or devolved) into perhaps the most controversial election in American history, could translate in a couple of months into a whirlwind for labor and workplace safety policy. Stark differences between the major candidates promise either an onward march for Obama-era rules and enforcement philosophy, or a sudden rollback of the Obama Administration’s aggressive regulatory and enforcement agenda.

How this election turns out will have lasting consequences for a range of labor initiatives and policies, many of which have led to some of the Obama Administration’s most heated policy debates. These range from forcing disclosure of so called “persuaders” involved in union organizing to a publicelection-webinar-cover-slide shaming campaign seeking to put employers’ safety data online.

As we discussed during a recent Conn Maciel Carey webinar, the results on Nov. 8th will have a huge impact on how the Labor Department proceeds with both new regulations and enforcement policies. Everything from Wage and Hour to OSHA and MSHA will be affected – and stakeholders will feel the differences quickly regardless who wins the election.

On most issues, a Clinton win would cement what the Labor agencies under Obama view as their mandate to keep issuing tougher rules on behalf of workers and unions. Generally, an election of Trump means DOL will scrap the lion’s share of its current agenda, and begin to repeal regulations finalized over Obama’s two terms, since his economic plan relies heavily on easing regulatory burdens on businesses. Continue reading

OSHA Postpones Enforcement of Anti-Retaliation Provisions of e-Recordkeeping Rule Again

By Eric J. Conn and Dan C. Deacon

OSHA has once again delayed enforcement of the controversial anti-retaliation provisions of its new electronic injury and illness recordkeeping rule.  OSHA issued its second delay of the effective date of enforcement of this portion of the rule at the request of Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas.  Judge Lindsay is presiding over a legal challenge to this portion of the rule filed by industry plaintiffs, and asked OSHA to delay enforcement of the anti-retaliation provisions RK Rule FRto give the court additional time to consider a pending motion for preliminary injunction to indefinitely delay enforcement.  The new enforcement delay runs through December 1, 2016.

As we have described in previous articles, OSHA included in the new electronic recordkeeping rule, a set of new obligations requiring employers to implement “reasonable reporting” procedures for employees to report to their employers work-related injuries. Also included are a broad and vague new set of provisions that expand OSHA’s enforcement authority to prevent employer retaliation against employees who report injuries and illnesses. OSHA has provided little guidance on precisely what the agency intends by “reasonable” reporting procedures or what types of policies may violate the new anti-retaliation provisions, but we understand from past policy statements and regulatory history that OSHA will at least focus on reporting deadlines, safety incentive programs, post-injury drug testing, and management compensation or bonuses tied to injury rates.

Industry plaintiffs filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was promulgated, challenging these anti-retaliation elements of the rule on the grounds that OSHA did not show that the anti-relation provisions would actually reduce injury rates, and further that the agency did not follow requirements of the Administrative Procedures Act (“APA”) in the rulemaking process. The plaintiffs sought a preliminary injunction seeking to prevent OSHA from beginning to enforce these provisions pending Continue reading

[Webinar] OSHA, Labor & Employment, and MSHA Impacts of the Upcoming Presidential Election

On Tuesday, October 25, 2016 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel and Nick W. Scala of Conn Maciel Carey’s national Labor and Employment Practice and Workplace Safety Practice, for a complimentary webinar regarding the OSHA, Labor & Employment, and MSHA Impacts of the Upcoming Presidential Election. election-webinar-cover-slide

In just a few weeks, we will have the opportunity to enter the voting booth, and cast a ballot to elect the next President of the United States.  The platforms and proposed polices of the candidates are more divergent than ever.  The outcome of this election will significantly impact this country’s future with respect to healthcare, military actions, economic policy, and of course, workplace challenges, like union organizing, and occupational safety and health regulation and enforcement.  This webinar will discuss the public positions taken by both candidates about labor employment subjects and safety and health enforcement and rulemaking, and the likely impacts depending on which candidate takes the White House.

Here is a link to register for this webinar.  If you missed Continue reading

Post-OSHA Citation – The Contest Process, Settlement Goals and Strategy – [Webinar Recording]

On September 7, 2016, Eric J. Conn and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the Post-OSHA Citation (The Contest Process, Settlement Goals and Strategy).

You just received a set of OSHA citations in the mail.  What now?  Should we accept the citations and pay the penalty?  Should we participate in an Informal Settlement Conference with the OSHA Area Office?  Should we contest the citations?  What does a good settlement look like and how can we achieve those goals?  This webinar will explain the post-citation process, and provide tips and strategies for resolving OSHA citations in a manner that mitigates the potential for Repeat violations, reduces the proposed penalty, prevents the citations from impacting a personal injury or wrongful death civil suit, and helps you avoid or extricate you from the Severe Violator Enforcement Program.

Participants in this webinar learned: Continue reading

OSHA’s Anti-Retaliation Recordkeeping Rule: Assault on Pizza Parties, Drug Tests and Exec Compensation

By Eric J. Conn and Dan C. Deacon of Conn Maciel Carey PLLC

OSHA’s recent Injury and Illness Recordkeeping reform has created quite a stir for employers.  As we discussed in an earlier article about the new Recordkeeping rule, OSHA now requires employers to electronically submit to OSHA their injury and illness recordkeeping data.  OSHA will, in turn, publish the data online for all the world to dissect.  It turns out, however, RK Rule FRthe electronic recordkeeping data submission elements of the new rule may not be the most problematic for employers.

The new Recordkeeping rule also increases employers’ obligations to implement “reasonable reporting” procedures for employees to report to their employers the work related injuries they incur, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions.  To date, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.

Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses.  Although none of those words appear in the amended Recordkeeping regulation, OSHA addressed each in the Preamble to the Final Rule.

These topics have been on OSHA’s radar for nearly a decade, dating back to a 2008 Report issued by the House of Representative Committee on Education and Labor entitled “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses.”  From that time, OSHA has been making efforts to address a perceived culture of underreporting injuries and retaliation against employees who do report workplace injuries and illnesses. OSHA has used every tool at its disposal to chip away at employer policies and practices that purportedly discriminate against employees who report injuries, or that attempt to deter employees from reporting injuries in the first place.

Even before this rulemaking, OSHA has taken action against policies that OSHA believes discourage reporting or recording of work related injuries.  For example, Continue reading

Announcing Conn Maciel Carey’s 2016 MSHA Webinar Series

MSHA Webinar SeriesAs we enter the home stretch of the Obama Administration, we are seeing increased MSHA enforcement, from more frequent and aggressive inspections to more citations with higher penalties.  MSHA is also trying to cram in a few more onerous new rules and regulations at the last-minute.  With the mining industry swirling to understand MSHA’s new proposed rules and enforcement efforts, it is more important now than ever before to be prepared for what’s ahead from MSHA. 

Conn Maciel Carey’s complimentary 2016 MSHA Webinar Series, hosted by the firm’s national MSHA Practice Group, is designed to give you the tools to avoid becoming the next MSHA-enforcement poster child. 

How Changes to MSHA’s Workplace
Exams Rule Will Affect Your Mine

Thursday, September 15th

Navigating Multi-Employer
Mining Sites

Tuesday, November 15th

MSHA, OSHA, and Employment Law Impacts of the Upcoming Presidential Election

Tuesday, October 25th

MSHA Hazard Complaints and Whistleblower Protections

Thursday, December 15th

 SEE BELOW FOR DESCRIPTIONS OF EACH WEBINAR AND REGISTRATION LINKS

Click here to register for the entire series.

Continue reading