[Webinar] Get the Record Straight: Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule

Presented by Amanda R. Strainis-Walker and Dan C. Deacon

On Tuesday, May 16, 2017 at 1: 00 PM Eastern, join Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, for a complimentary webinar regarding “OSHA’s E-Recordkeeping and Anti-Retaliation Rule.” 

OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges.  As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar will learn about the following:

  • Requirements of OSHA’s Electronic Injury Recordkeeping data submission
  • The status of OSHA’s new database to receive injury data
  • OSHA’s policy on publishing the injury data received from employers
  • The Anti-Retaliation Elements of the E-Recordkeeping Rule
  • The status and future of this new Final Rule
  • The fate of “Volks” Recordkeeping Statute of Limitations Rule

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

Finally We Have a Labor Secretary – Alexander Acosta

By Lindsay A. Disalvo

On Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the first Secretary of Labor in the Trump Administration.  As we reported in an earlier article when Acosta was first nominated by Pres. Trump, in this role, Sec. Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws and regulations.

The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

Specifically, during the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately eight months.  In 2003, President Bush appointed him to Head the Civil Rights Division at the U.S. Department of Justice’s , a position which he held for about two years, before being appointed to serve as the United States Attorney for the Southern District of Florida.  Most recently, Acosta was the Dean of Florida International University’s School of Law.

At this point, it is still uncertain what jurisprudence Acosta will bring to the role of Secretary of Labor.  The Trump Administration and its initial Secretary of Labor nominee, Andrew Puzder, who withdrew from consideration back in February, have taken aggressive stands on deregulationHowever, Acosta’s positions on regulation and enforcement have not been as clearly expressed, and his prior experience as a prosecutor may suggest a more measured approach in managing the enforcement responsibilities of the various agencies under his direction.  We will have a better idea of Acosta’s approach soon, however, because there are a number of time sensitive issues that will need his prompt attention upon being sworn in.

In particular, we expect that one immediate priority for Acosta will be Continue reading

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

Nationally Recognized OSHA Attorney Micah Smith Joins Conn Maciel Carey’s OSHA Practice

Last week, Micah Smith, a prominent Washington, D.C. OSHA defense attorney, joined Conn Maciel Carey as Of Counsel with the national OSHA • Workplace Safety Practice Group.  Mr. Smith focuses his practice on occupational safety and health law.  He has extensive experience and expertise in handling complex OSHA matters, from Micah's head shotrulemakings to the full range of enforcement-related matters, such as fatality investigations and litigation of contested OSHA citations.

In welcoming Micah to the firm, the Chair of Conn Maciel Carey’s OSHA Practice, Eric J. Conn, said:

“Our national OSHA Practice Group continues to represent employers and associations in the most complex, high-profile OSHA matters of the day, so adding to our team an attorney of Micah’s caliber, experience, and record of extraordinary success for employers will be invaluable. Micah is known nationally for his handling of complex, process safety management inspections and litigation.  As OSHA embarks on a major rulemaking to reform the Process Safety Management Standard (and EPA advances an updated Risk Management Plan rule), we are even better positioned to help employers in this area with Micah now a part of our team.”

In describing his own practice philosophy, Micah explained:

“What I am most excited about in joining Conn Maciel Carey is that the attorneys here share my focus on working with employers to identify safety and health strategies that both increase employee safety and improve business performance.  I love advising clients on safety and health issues because this work matters.  Companies with good safety and health programs improve the lives of their employees every day, and I take great pride in helping my clients in this mission.  Whether helping a client improve a great program or helping a company that has experienced a tragic mishap, I always get to work toward making workplaces better.  And one exciting part of this is watching my clients improve their business performance as a direct result of improving their safety programs.

“I am also delighted to join such a strong bench of OSHA specialist attorneys here at Conn Maciel Carey.  There are so few true OSHA specialists in the country, so to have the opportunity to support this tremendous group will make practice in this field all the more enjoyable.”

Check out Micah’s full bio.

OSHA Settles Legal Challenge to Process Safety Management Chemical Mixtures Enforcement Memo

By Eric J. Conn, Amanda R. Strainis-Walker, and Bryan A. Carey

In March 2015, the U.S. Supreme Court issued its decision in the closely watched Perez v. Mortgage Bankers. The Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to federal agency rules, even if the changes are “interpretive” in nature, must go through Administrative Procedure Act public notice-and-comment.Mortgage Bankers Mortgage Bankers reversed that principle, and held that notice-and-comment rulemaking is not required for “interpretive rules” or “administrative interpretations.”

In the post-Mortgage Bankers world, the Occupational Safety and Health Administration (“OSHA”) has a powerful new tool for backdoor rulemaking, and OSHA wasted no time taking advantage of this new legal doctrine. OSHA’s first efforts to utilize the new authority were seen in changes to its Process Safety Management of Highly Hazardous Chemicals standard (29 CFR 1910.119), which detail the requirements for operating and maintaining processes that use highly hazardous chemicals.  Less than three months after the Supreme Court issued the Mortgage Bankers decision, OSHA issued three separate interpretation letters to amend the PSM Standard:

  1. Narrowing the long-standing “Retail Exemption” from PSM-coverage;
  2. Defining and enforcing the application of “Recognized and Generally Accepted Good Engineering Practices” (“RAGAGEP”); and
  3. Expanding the scope of chemical mixtures covered by the PSM Standard.

Read our earlier article about these three enforcement memorandum and the resolution by settlement of a legal challenge to the RAGAGEP interpretation.

The Chemical Mixture Interpretation

On June 5, 2015, OSHA issued an enforcement memorandum regarding PSM and Covered Concentrations of Appendix A Chemicals, which substantially revised OSHA’s policy on the concentrations of components of chemical mixtures that trigger the coverage under the PSM Standard.  Appendix A of the PSM Standard lists the “highly hazardous chemicals” that are Continue reading

OSHA Civil Penalties Spike by 80% on August 1st

By Eric J. Conn

On June 30, 2016, the U.S. Department of Labor issued an Interim Final Rule to implement the Federal Civil Penalties Inflation Adjustment Improvements Act passed last Fall as part of the highly publicized “Bipartisan Budget Act of 2015” negotiated between the Republican-controlled Congress Interim Final Ruleand the White House. Employers have a short window – until August 15th – to submit comments on the penalty increase rule.

As described in our November 2015 article here on the OSHA Defense Report, the inclusion in the budget deal of this extraordinary provision requiring immediate penalty increases to “catch up” with inflation was shocking to many, especially in light of the fact that the Republicans who accepted it are the same politicians who, year after year, reject Democrat-led efforts to pass some version of the Protecting America’s Workers Act – OSHA reform legislation that has as its cornerstone a provision to increase OSHA statutory penalties.

Although the Federal Civil Penalties Inflation Adjustment Improvements Act applies to all federal regulatory agencies, its impact will be felt most by employers receiving citations from OSHA. This is because many federal agencies, such as EPA and MSHA, quasi-regularly increase their penalties based on inflation.  OSHA, on the other hand, has been statutorily prohibited from raising penalties for the last 25 years under a budget bill passed in the 1990s.  As a result, OSHA’s August penalty “catch-up” hike will be the most significant of all federal agencies, raising penalties a whopping 78%, and increasing employers’ burden by an estimated $111M in the first year.

Also extraordinary is the fact that the regulation was not Continue reading