11th Cir. Deals a Big Blow to OSHA’s Inspection Authority

By Eric J. Conn and Lindsay A. DiSalvo

OSHA’s enforcement authority, specifically as it relates to the agency’s ability to expand an unprogrammed inspection beyond its original scope, has been limited, at least for employers in the Southeast.  Late last year, in United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the 11th Circuit affirmed a district court decision to quash an administrative inspection warrant that would have permitted OSHA to expand an inspection of Mar-Jac Poultry, Inc.’s (“Mar-Jac”) poultry processing facility in Georgia, initiated as a partial scope inspection in response to a single, specific reported injury, to become a comprehensive inspection under a Regional Emphasis Enforcement Program. This decision is important for employers because OSHA’s inspection authority has generally been understood to be quite broad, and judges have generally deferred to OSHA when applying the applicable administrative probable cause standard to OSHA’s inspection authority.  But in Mar-Jac, the 11th Circuit determined that an unprogrammed inspection initiated as a result of a specific reported injury could not lawfully be expanded to include other areas of the facility, other hazards unrelated to the specific reported injury, and other aspects of Mar-Jac’s safety program, because the evidence presented by OSHA in support of its warrant application was inadequate to establish reasonable suspicion of the presence of violative conditions unrelated to the reported injury.

Background of the Case

OSHA decided to inspect Mar-Jac’s poultry processing facility in Georgia after the facility called OSHA to report a serious injury that resulted in an in-patient hospitalization on February 4. 2016.  The injury occurred on February 3rd, when an employee attempted to repair an electrical panel with a non-insulated screwdriver, resulting in an arc flash and serious burns to the employee.  After receiving the injury report, OSHA opened an unprogrammed inspection at the facility on February 8th.  At that time, OSHA asked the employer for consent to inspect both Continue reading

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Continue reading

D.C. Circuit’s “Inadvertently Issued” Mandate puts RMP Amendments into Effect for a Weekend

By Eric Conn, Micah Smith, and Beeta Lashkari

Late last Friday, August 31, 2018, the D.C. Circuit unexpectedly granted Petitioners’ request to expedite the issuance of the Court’s mandate to strike down the delay of EPA’s 2017 RMP Amendments.  RMP DecisionAs we previously reported, the D.C. Circuit held on August 17, 2018, that EPA acted improperly when it issued a final rule delaying the effective date of a certain set of amendments made to EPA’s RMP Rule (the “Delay Rule”).  Providing for a full rehearing petition period, and absent any action from the Court, the mandate for this decision would have issued at the earliest on October 8, 2017.  On August 24, 2018, however, Petitioners filed a motion to expedite, asking that it issue no later than September 7, 2018.

Petitioners’ arguments focus on the public’s “strong interest” in the prompt issuance of the mandate due to “the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” and they point to the 14 months of delay that has already occurred as evidence of the need for expedited relief.

And in a nod to current events, Petitioners claim that time is now of the essence because of the impending hurricane season, specifically mentioning the OIG’s investigation of EPA’s preparedness and response efforts to Hurricane Harvey in 2017.

Under the Federal Rules of Appellate Procedure, EPA and the Intervenors are afforded 10 days to file oppositions to Petitioners’ Motion, so those oppositions had not yet been filed on August 31.

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After the Court issued the mandate late on Friday, August 31, several motions for reconsideration were filed by EPA and Intervenors, but the Court’s closure over the 3-day weekend left all the parties in suspense, anxiously trying to determine the implications of the decision.

After a long weekend of suspense, the Court ordered EPA to return the mandate on September 4, noting that the responses to Petitioners’ Motion were not yet due.  The Court also briefly noted that it appeared “that the court’s mandate inadvertently issued” the previous Friday.  EPA returned the mandate on the same day.

But now that EPA and the Intervenors have filed oppositions to Petitioners’ Motion to expedite the issuance of the mandate, what comes next?  Continue reading

D.C. Circuit Strikes Down the Trump EPA Delay of Obama EPA’s Overhaul of the Risk Management Program Rule

By Micah Smith, Eric J. Conn, and Beeta Lashkari

Today, the U.S. Court of Appeals for the D.C. Circuit handed EPA (and Industry) a significant setback in the long-running battle over the 2017 Amendments to EPA’s Risk Management Program (RMP) Rule (EPA’s companion regulation to OSHA’s Process Safety Management Standard).  Specifically, in a per curiam order in Air Alliance Houston v. EPA, the D.C. Circuit held that EPA under the Trump Administration acted improperly when it issued a final rule delaying the effective date by 20 months (from June 2017 to February 2019), of a significant set of Amendments to the RMP Rule that had been promulgated in the final days of the Obama Administration. 

This ruling creates significant concern for the regulated community.  The Amendments require major overhauls to they way covered employers implement their risk management plans.  But EPA is still advancing a rulemaking to rescind and narrow those Amendments.  Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.

Indeed, EPA’s express purpose of the lengthy delay of the RMP Amendments was to provide time for EPA to reconsider and eliminate or curtail the sweeping new provisions.  The D.C. Circuit criticized EPA for its attempts to delay a regulation that it had just recently issued, stating in the written opinion that:

“the Delay Rule thus contains no provisions that advance or accomplish these goals [of preventing accidental releases and protecting human health and the environment], but instead delays these objectives contrary to EPA’s prior determinations in a rulemaking.”

While the Court criticized the agency for Continue reading

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 2 of 2 – Five Common LOTO Mistakes)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) (LOTO) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article lays out:

  • [Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: 5 common mistakes employers make implementing LOTO requirements.

Part 1 Summary: Five Reasons it is Critical to Get LOTO Right

As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.

Those 5 reasons are:

  1. Amputation Injuries Create Special Reporting Obligations
  2. LOTO Citations are Low Hanging Fruit for OSHA
  3. OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
  4. LOTO Violations Qualify for the Severe Violator Enforcement Program
  5. LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions

For a detailed discussion about those reasons, check out Part 1 of this two-part article.

Part 2: Five Common LOTO Mistakes

This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.

     1. Confusion about When the LOTO Standard Applies

Normal production operations are not covered by the LOTO standard.  Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed.  Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.

While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO).  Technically, OSHA may not cite the Continue reading

OSHA’s “Look Back” Window to Issue Repeat Citations is Unlimited

By Eric J. Conn and Dan C. Deacon

The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat.  The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014.  OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.

Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual.  The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.

In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years.  Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.

The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy.  OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading

OSHA’s PSM Standard & EPA’s RMP Rule [Webinar Recording]

On December 12, 2017, Eric J. Conn and Micah Smith of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s PSM Standard & EPA’s RMP Rule.”

Following the tragic West Fertilizer explosion in 2013, then-Pres. Obama issued an Executive Order directing OSHA, EPA and other agencies to “modernize” how the government regulates chemical manufacturing.  In response, OSHA and EPA took sweeping actions, from rulemaking and interpretation letters to overhaul the PSM and RMP regulatory landscape, to new enforcement initiatives, like a the Chemical Facilities and Petroleum Refineries PSM National Emphasis Program.  When Pres. Trump took office, several key process safety and environmental regulations were delayed or repealed, new political leadership was installed, and enforcement policies were reexamined.  This webinar will review the status and likely future of OSHA’s PSM and EPA’s RMP regulatory programs.

During this webinar, participants learned:

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

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 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

Trump’s Supreme Court Nominee Neil Gorsuch Sides with Businesses on Labor and OSHA Issues

On February 1, 2017, President Trump nominated Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, to fill the vacancy on the Supreme Court left by Antonin Scalia’s death in February 2016.  Indeed, since February 2016, the High Court has functioned with only eight members; four liberal Justices and four conservative Justices.  gorsuch-imageTherefore, the confirmation of a ninth Justice to fill the vacant position, and establish a majority conservative bench, is likely to have a substantial impact on the outcome of controversial issues brought before the Court.

Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006.  Although he is considered a firm conservative, as was expected given President Trump’s public stance to fill the vacancy with a judge who embodies Scalia’s principles, he has garnered praise from both liberals and conservatives for his work as an appellate judge due to his reputation for conveying his ideas fluently and courteously.

A number of Democrats have already conveyed their opposition to Gorsuch’s nomination, which could prove problematic as he will need to win over some Democratic senators to get the 60 votes needed to clear procedural hurdles.However, setting the political climate aside, when Judge Gorsuch was appointed to the Tenth Circuit in 2006, he was confirmed by the Senatewithout objection.  Only time will tell if Judge Gorsuch will acquire enough support from Senate Democrats to overcome a filibuster given the immediate public opposition from Democrats following Gorsuch’s nomination, and whether he will be approved in time to hear oral arguments later this spring.  Judge Gorsuch’s opinions on labor and employment topics suggest that he favors businesses, and his decisions reflect a distaste for overreaching agency action which could result in some limiting decisions if he is ultimately confirmed.

Who is Judge Gorsuch?

Prior to being appointed to the Tenth Circuit, Judge Gorsuch amassed an impressive resume.  He received his undergraduate degree from Columbia University in New York City in 1988 and his law degree from Harvard Law School, with honors, in 1991 where he was the editor of the Harvard Journal of Law & Public Policy and classmates with former President Obama. Judge Gorsuch also earned a doctorate of legal philosophy from Oxford University in 2004, where he studied as a Marshall Scholar.  Judge Gorsuch began his law career as a

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

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

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

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

The Freedom of Information Act Amended: Process and Pitfalls

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Pub. L. No. 114-185, which made significant changes to the Freedom of Information Act, 5 U.S.C. § 552, et seq. (“FOIA”).FOIA Act FOIA can be a great tool for unlocking the federal government’s vast compilations of documents and information, which make it a great resource for business intelligence. But you also should be aware of FOIA’s pitfalls, including how your own business’s confidential documents and information can be disclosed to the public, including the media, if the federal government has them in its possession and they become subject to a FOIA request.

FOIA was enacted in 1966 and allows any member of the public to request access to government information without requiring a showing of a need or reason for seeking the information. FOIA was a revision of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (“APA”). Congress saw that the APA was falling short of its original disclosure goals and that the original law came to be viewed more as a withholding statute than a disclosure statute. See EPA v. Mink, 410 U.S. 73, 79 (1973). Congress’s intent in enacting FOIA was to make the government’s records and activities available and transparent to the public with only a handful of express exemptions that the government could invoke to withhold documents and information from disclosure. Generally the exemptions prevent disclosure of information related to national security, law enforcement investigations, government personnel rules and practices, specific exemptions from other statutes, and trade secret, commercial, or financial information obtained from third parties such as individuals and businesses.

The federal government is a huge Continue reading

OSHA Engages in Backdoor Rulemaking — Courtesy of the Supreme Court

By Eric J. Conn

OSHA is attempting to reap the policy-making benefits of a Supreme Court decision that lets regulatory agencies offer new (even contradictory) interpretations of existing rules without following the Administrative Procedure Act’s (“APA”) notice-and-comment rulemaking process, with the most immediate and serious impacts seen in the regulatory landscape of chemical process safety. OSHA policymakers have shown they are eager to exercise new-found authority to unilaterally change the meaning or application of existing regulations to suit their current agenda (i.e., without soliciting stakeholder input and otherwise flouting the traditional checks on agency rulemaking afforded by the APA, such as economic and feasibility analyses).

Perez v. Mortgage Bankers

That is the reality following the high court’s 2015 decision in the closely watched Perez v. Mortgage Bankers case. The Supreme Court’s decision killed a longstanding doctrine, set by the D.C. Circuit, that changes to agency rules, even if the changes are “interpretive” in nature, must go through APA 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.”

The effect of the Supreme Court’s new precedence is to free regulators, like OSHA, to change, though internal fiat, long-held positions regarding how its rules must be followed and enforced, and (if recent efforts by OSHA testing its new authority stand) even to whom its rules apply. In the post-Mortgage Bankers world, OSHA has a powerful new tool for backdoor rulemaking, an already favorite route for OSHA to end-run the burdensome standard-setting process imposed by Congress.

OSHA Impact of Mortgage Bankers

OSHA wasted no time taking this new legal doctrine out for a spin. OSHA’s first efforts to utilize the new authority were seen in Continue reading

OSHA, EEOC and the Dept. of Justice Weigh In On Transgender Rights in the Workplace

In the last few months, hardly a day has gone by without some news regarding transgender bathroom access.  Perhaps the catalyst for the increased attention on this issue was North Carolina’s passage of its controversial H.B. 2 law which, among other things, restricts transgender people’s access to public restrooms and blocks local governments from passing NC Bathroom Lawanti-discrimination laws to protect LGBT individuals.

Notably, the American Civil Liberties Union (“ACLU”) has since filed a lawsuit in federal court challenging that law, and seeking an injunction preventing the State from enforcing it.  On May 4, 2016, the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory saying the state’s controversial law restricting bathroom access for transgender persons is in violation of federal civil rights laws prohibiting employment discrimination.

The ACLU has also successfully challenged other entities that it believed were infringing on transgender rights.  For example, the U.S. Court of Appeals for the Fourth Circuit recently sided with the ACLU and ruled that a transgender high school student who was born as a female but was barred from using the boys’ bathroom can sue his school board for discrimination.  In that case, the Fourth Circuit accepted the federal government’s interpretation of discrimination as including discrimination against transgender individuals and thus deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities, rather than being forced to use bathrooms that match their biological sex.OSHA Bathroom Image

As a byproduct of the increasing visibility of this issue, both the U.S. Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) have strongly supported transgender rights.  Indeed, last year, OSHA promulgated its “Transgender Restroom Access Guide” with the core Principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.  OSHA linked this to safety and health by reasoning that:

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California “Suitable Seating” – the Legal and Ergonomics Landscape [Webinar Recording]

On Tuesday, May 3, 2016, Andrew J. Sommer (employment law partner at Conn Maciel Carey) and Brandy Ware (PhD Ergonomist and Principal at JFAssociates) presented a webinar about the legal and practical implications of California’s “Suitable Seating” law and litigation landscape.

In advance of the webinar, the employment attorneys at Conn Maciel Carey and the Ergonomics Experts at JFAssociates co-authored a detailed article about the California Supreme Court’s new, significant opinion that changed the landscape of California’s suitable seating in the workplace requirements.  Specifically, the new ruling places the question of whether the “nature of the work reasonably permits the use of seats” squarely at the center of a new cottage industry of class and collective action lawsuits in California.

This joint webinar by Conn Maciel Carey’s Employment Law Practice and the leading ergonomics experts at JFAssociates reviewed:

  1. The California legislation that mandates suitable seating;
  2. The First wave of law suits invoking the suitable seating requirements;
  3. The California Supreme Court’s recent decision and what it means for the future of suitable seating cases; and
  4. Practical and expert witness strategies to avoid and defend against suitable seating law suits.

Here is a link to a recording of the joint suitable seating webinar.

Article: California Supreme Court Ruling on Suitable Seating: Legal and Ergonomics Perspectives

By Andrew J. Sommer, Esq. and Brandy Farris Ware, PhD, CPE, CSSBB

A recent California Supreme Court ruling provides crucial new guidance on how courts should weigh the evidence in so-called “suitable seating” cases, which employee litigants are bringing under the state requirement that employers provide seats to workers where the nature of their work “reasonably permits” the use of seating.

This is a key emerging issue for the Golden State’s business community, with a new cottage industry of lawsuits stemming from a state appellate court decision several years ago allowing “suitable seating” litigation under the California Private Attorney General Act (PAGA). The ruling encouraged new lawsuits because penalties as well as attorney’s fees and costs may be awarded under PAGA.

The California Supreme Court handed down an opinion April 4, 2016 in response to questions posed by two federal lawsuits, setting out new ground rules for what actually constitutes “suitable seating” under the law. Suitable SeatingEmployers with locations in California are well-advised to evaluate their work environments in light of these latest developments and consider the need for workplace safety experts to assess their individual circumstances. Not only can such evaluations, based on the new Supreme Court guidance, help employers head off litigation (or at least reach a favorable outcome if sued), they also can lower other risk factors and costs like worker’s compensation.

The Court adopted a fact-based approach that depends not on the entire job, but on Continue reading

OSHA Proposed Rule Attempts to Undo D.C. Circuit Recordkeeping Statute of Limitations Ruling

By Eric J. Conn and Kate M. McMahon

Earlier this year, we wrote about a very significant rulemaking to amend OSHA’s injury and illness recordkeeping regulations to require employers to proactively submit their injury logs and reports to OSHA on a regular and frequent basis. We understand OSHA is committed to implementing that rule before the Obama Administration shuts out the lights and hands over the keys. The data submission recordkeeping rule is not, however, the only effort underway by OSHA to reform its recordkeeping regulations.

In what is certain to land OSHA back in court, OSHA plans to soon roll out a rule that attempts to end-run around the U.S. Court of Appeals for the D.C. Circuit’s decision that rejected the Agency’s historical doctrine that violations of OSHA injury and illness recordkeeping requirements continued each day an employer’s log remained incomplete or inaccurate, and declared instead that recordkeeping violations may only be cited within a strict six month statute of limitations.RK Rule Proposal  OSHA has attached the misleading name “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” to this rulemaking.

The driver behind OSHA’s proposed amendment to its injury and illness recordkeeping rule is not to clarify anything, but rather to attempt to undo the D.C. Circuit’s very clear 2012 decision in AKM LLC v. Secretary of Labor (aka the Volks Constructors case). In Volks Constructors, OSHA argued that every day the logs remain inaccurate, the employer commits a new violation, and extends the enforcement deadline. In other words, even though Congress set a six month statute of limitations for OSHA violations, OSHA believed the statute of limitations for injury and illness recordkeeping violations was five years plus six months due to the “continuing” nature of recordkeeping violations. Applying this expansive and flawed view of the statute of limitations historically gave OSHA wide latitude in recordkeeping enforcement. Continue reading

Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

By Daniel C. Deacon and Kara M. Maciel

Workplace violence has become a serious issue for employers throughout the United States. In the wake of the recent mass shootings that occurred in San Bernardino, CA and Hesston, KA, both of which occurred at least in part at an employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented.  Although these two incidents may not have been foreseeable or preventable,WPV Image these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.

Workplace violence can be categorized in three ways:

  1. Violence by an employee;
  2. Violence by a stranger; or
  3. Violence by a known third party.

Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action.  In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties.  However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.

Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence.  This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading

Pres. Obama Announces Nominee to S.Ct. – A Moderate on Labor and Worker Safety

By Kara M. Maciel and Eric J. Conn

President Obama has tapped a moderate in Judge Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, for the U.S. Supreme Court vacancy left by the late Antonin Scalia. Here is a link to a video about Judge Garland posted on the White House website. Presidential politics may, however, stand in Garland’s way, as Senate Republicans have threatened to block any nominee, even from getting a hearing or vote.Judge Garland

Because the D.C. Circuit is often referred to as the second-highest court in the land, Judge Garland’s court opinions have been closely watched. Garland, nominated to the federal court of appeals by President Bill Clinton, has been viewed as a moderate left-of-center jurist, and has taken the side of business in quite a few high profile cases.

One example is Volks Constructors, an Occupational Safety and Health Administration case in which Judge Garland overturned the decision of the OSH Review Commission and concurred with the employer’s argument that OSHA’s six-month statute of limitations applies to injury and illness recordkeeping violations (making an inaccurate or incomplete OSHA log). OSHA had tried to impose a legal theory that inaccurate logs were a “continuing violation” that tolled the statute of limitations period for every day the log remained inaccurate. Judge Garland ruled that a recordkeeping violation occurs at a point in time when the recordkeeping entry was due to be perfected, it does not continue beyond that date, and OSHA may not cite beyond six months from that date. Judge Garland cautioned not to override his opinion, emphasizing:

“This does not mean, however, that the statute could not admit of a continuing violation theory under other circumstances.”

OSHA is working on a rulemaking to undo that decision.

President Obama selected Judge Garland as a moderate in what appears to be an effort to Continue reading

New ALJ Decision Emboldens OSHA to Demand More Corporate-Wide Abatement

By Eric J. Conn and Lindsay A. Smith

Employers with multiple worksites beware – OSHA is now much more likely to demand so-called “enterprise-wide abatement” in Complaints filed with the Occupational Safety and Health Review Commission (the “Review Commission”).

Despite what had been settled law for years and the plain language of the OSH Act – that abatement must be limited to the specific workplace where a violative condition was observed by OSHA during an inspection – during the Obama Administration, OSHA began to pursue “enterprise-wide” mandatory abatement; not only as negotiated terms in settlement agreements, but also in relief sought in Complaints filed withCentral Transport Pic 3 the Review Commission. 29 U.S.C. Sec. 659(c) authorizes the Review Commission to:

“issue an order … affirming, modifying or vacating the Secretary’s citation or proposed penalty or directing other appropriate relief ….”

Relying on the “other appropriate relief” language, OSHA has been requesting the Review Commission to order enterprise-wide abatement based simply on observations of a violation at a single location within a multi-facility company.

The Agency’s enterprise-wide abatement efforts first gained notoriety a few years ago during OSHA’s relentless enforcement efforts targeting the U.S. Postal Service. In a 2010 enforcement action against USPS, relying on the “other appropriate relief” OSH Act language, OSHA demanded from the Review Commission an order for USPS to abate the alleged hazards that the Agency observed at one USPS station at all USPS operations around the country. USPS fiercely contested that demand. The enterprise-wide abatement issue was not decided by the Review Commission in that case, however, because OSHA and USPS reached a landmark settlement obviating the need for the Commission to rule on its authority to grant such relief.

We saw OSHA’s efforts to legitimize corporate-wide abatement again in Continue reading