Key OSHA Cases Explained

Key OSHRC Rulings Explained: Secretary of Labor v. Trinity Solar LLC

Eric J. Conn Leave a comment

By Valerie Butera

Welcome to “Key OSHRC Rulings Explained,” a new series in Conn Maciel Carey LLP’s OSHA Defense Report blog, designed to explore significant case summaries of Occupational Safety and Health Review Commission (OSHRC) decisions. This series will provide clarity and context on key OSHRC rulings that have shaped workplace safety standards and compliance obligations under the Occupational Safety and Health Act. Our goal is to provide concise, insightful analyses of these rulings to help employers and safety professionals stay informed about evolving interpretations and enforcement trends, prepare for subsequent compliance obligations, and navigate the legal landscape of workplace safety. We invite you to follow along as we unpack the most impactful OSHRC decisions and their practical implications.

Our first case law summary in the series will cover the Secretary of Labor v. Trinity Solar LLC, as successor to Trinity Solar Inc., OSHRC Docket No. 23-0712 (Dec. 26, 2024).

Executive Summary Continue reading →

Destabilized But Not Yet Deconstructed: Analysis of This Momentous SCOTUS Term for the Administrative State

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By Conn Maciel Carey’s national OSHA Practice Group

The 2023-2024 Term of the United States Supreme Court will undoubtedly have far-reaching implications in a number of areas, but perhaps most significantly—at least for regular readers of the OSHA Defense Report blog—with respect to the ability of federal agencies to promulgate and enforce regulations.  In a trio of recent decisions addressing federally mandated monitors in fishing vessels (Loper Bright v. Raimondo), civil fines imposed by the Securities and Exchange Commission (SEC v. Jarkesy) and payment network processing fees incurred by a truck stop (Corner Post, Inc. v. Board of Governors of the Federal Reserve System), the High Court sent shockwaves that will likely reverberate through all federal agencies and the regulated community alike for years to come.

The familiar framework in which these agencies have long operated, dating back to the mid-1980s when Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. was decided, appears to have been upended, or at least is now resting on shaky ground. And while these three decisions do not, by themselves, dismantle the administrative state, they have the potential to significantly reorder the familiar foundations upon which OSHA and dozens of other administrative agencies have operated.

Perhaps most importantly, these decisions appear to open the door wide for future challenges to vast swaths of the Code of Federal Regulations that currently govern how businesses and other regulated entities operate today and the venue where regulatory disputes are resolved. This article examines the implications of these cases and offers some educated speculation about the sea change that may occur at OSHA and elsewhere over the next few years. Continue reading →

The Supreme Court Heard Oral Argument in the Legal Challenges to OSHA’s Vaccinate-or-Test Emergency Rule

Eric J. Conn 7 Comments

By Conn Maciel Carey LLP’s COVID-19 Task Force

This morning, the US Supreme Court heard oral argument in National Federation of Independent Business v. Department of Labor and Ohio v. Dept. of Labor, the consolidated cases challenging the legality of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard.  Specifically, the question before the Court today was whether the OSHA ETS should be stayed pending the merits adjudication pending before the US Court of Appeals for the Sixth Circuit.

Although scheduled for just one hour, the argument in this rare OSHA case to appear before the Supreme Court lasted a little more than two full hours.

If you were not able to listen live this morning, here is a link to an audio recording on C-SPAN.  And here is a link to the transcript of the argument.

The Department of Labor was represented at argument by the Solicitor General Elizabeth Prelogar.  The lawyers representing the petitioners that are seeking an emergency stay of OSHA’s vaccinate-or-test ETS were:

  • Scott Keller from Lehotsky Keller LLP, representing National Federation of Independent Business and other industry associations; and
  • Benjamin Flowers, the Solicitor General of Ohio, representing Ohio and other petitioner states.

The Ohio Solicitor General, arguing against OSHA’s vaccinate-or-test ETS, appeared remotely for the argument because he tested positive for COVID-19, somewhat ironically, pursuant to the Supreme Court’s own testing mandate for lawyers who would appear in-person to argue before the Court.

Our very high level takeaway from the argument today, and based on the nature of the questions the various Justices asked and what we know about their jurisprudence, it seemed that the conservative majority of the Court Continue reading →

30+ Challenges to OSHA’s Vaccination, Testing, and Face Coverings ETS Consolidated in the Sixth Circuit

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By Conn Maciel Carey LLP’s COVID-19 Task Force

Since OSHA published its Vaccinations, Testing, and Face Coverings ETS in the Federal Register 11 days ago, petitioners have filed more than 30 separate lawsuits challenging the legality of the ETS and moving to temporarily and then permanently enjoin implementation of the ETS. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions (presumably for strategic reasons – to give more liberal courts a chance to take the lead in hearing the litigation).

By judicial procedure, when a legal challenge to an OSHA standard is filed in more than one US Court of Appeals, the US Judicial Panel on Multi-District/Circuit Litigation will respond to a motion by either party in the challenge to consolidate all of the challenges that were filed within 10 days of issuance of the standard, and by way of a true lottery, will assign the consolidated cases to a single circuit court.

Yesterday marked the tenth day since the OSHA ETS was published in the Federal Register, so this morning, (November 16th), the Department of Labor gave notice to the MDL Panel of the numerous petitions for review of a single case filed in each of the 1st, 2nd, 3rd, 5th and 10th Circuits, two cases in each of the 4th and 7th Circuits, three cases in the 9th, 11th, and District of Columbia Circuits, four cases in the 8th Circuit, and five cases in the 6th Circuit.  For those keeping score at home, that’s at least one legal challenge filed in every US Court of Appeals in the country except for the Federal Circuit, which does not have jurisdiction to hear challenges to OSHA standards.  Regardless of the number of challenges filed in any given circuit court, each circuit had one chance in the lottery. Continue reading →

[BREAKING] Fifth Circuit Orders a Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings ETS

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Emphasizing that the extraordinary power afforded to OSHA under the emergency provisions of the OSH Act should be delicately exercised, the US Court of Appeals for the Fifth Circuit issued a 22-page opinion late yesterday, November 12th, reaffirming after briefing by both parties the Stay of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard (ETS) that it had ordered on November 6th. The Fifth Circuit panel ordered that OSHA may take no further steps to implement or enforce its newly issued ETS until further court order, and thus may not require employees of covered employers to undergo COVID-19 vaccination, take weekly COVID-19 tests, or wear a mask.

Why Did the Fifth Circuit Stay OSHA’s ETS?

Notably, the Fifth Circuit commented in a footnote that debates over the Biden Administration’s vaccine mandate have “roiled the country throughout much of the Fall,” and that the ETS (referred to as “the Mandate” by the three-judge panel) “affects every person in America one way or another.”  Drawing from a variety of sources—including White House Chief of Staff Ronald Klain’s retweet of an MSNBC anchor’s tweet characterizing the ETS as a “workaround” for a federal vaccine mandate, the Court refused to accept the government’s arguments that a sufficient emergency exists justifying a second COVID-focused ETS in less than 6 months.  Indeed, the Court found that prior statements by the Administration “belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS.”  To that end, the Court seized on the fact that more than 78% of Americans aged 12 and older are either fully or partially vaccinated and thus face “little risk at all” according to the Administration.

While the November 12 opinion was issued after the Fifth Circuit conducted an “expedited” review, the Court leaves little doubt as to how it will likely rule Continue reading →

[BREAKING] 5th Cir. Temporarily Stays OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Rule

Eric J. Conn 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

On Saturday, November 6th, a three-judge panel of the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) staying the effect of OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS) that it had promulgated just the day before.  The entirety of the court’s explanation for the stay Order was this:

“Because the petitions give cause to believe there are grave statutory
and constitutional issues with the Mandate, the Mandate is hereby STAYED
pending further action by this court.”

The suit challenging OSHA’s new vaccination, testing, and face coverings ETS was initiated on behalf of a group of private businesses and religious organizations, as well as several states, including Texas, Louisiana, South Carolina, Utah and Mississippi. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The petitioners assert that an emergency stay is necessary because these employers will face workforce shortages if unvaccinated employees quit their jobs in lieu of receiving a COVID-19 vaccination, and the ETS forces them to expend resources to develop and implement written compliance and reporting procedures beyond what the law authorizes under the circumstances.

Specifically, their objections to the OSHA ETS include: Continue reading →

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

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By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Continue reading →

“Unexpected Energization” Still Essential to Require Lockout/Tagout Despite Controversial OSHA Rulemaking

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By Dan C. Deacon and Eric J. Conn

After years awaiting the fate of OSHA’s controversial proposed change to write the term “unexpected energization” out of its Lockout/Tagout (“LOTO”) standard, OSHA just announced its new Final Rule of Phase IV of the Standards Improvement Project (“SIP”).  The SIP process was designed to allow OSHA a simplified rulemaking path to make non-controversial changes to fix minor issues with existing standards.  The SIP IV proposal included numerous minor adjustments to a variety of existing OSHA standards, but one seemingly major change to the LOTO standard.  Specifically, the Obama Administration’s OSHA slipped into SIP IV a controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard to kick-in.  After an outcry by the regulated community, this proposed change to the LOTO standard was removed from the Final Rule.  However, OSHA signaled it will likely re-visit the issue again in a separate LOTO rulemaking.

History of Standards Improvement Project

OSHA initiated the “Standards Improvement Project” (SIP) during the Clinton Administration, and and there have been a series of four SIP rulemakings since.  The Project was intended to allow OSHA to efficiently make non-controversial changes to confusing, outdated, or duplicative elements of OSHA standards and to to align standards across industries and make it easier for employers to understand and comply with safety and health regulations. Continue reading →

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

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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 →

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

Eric J. Conn 2 Comments

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 →

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

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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

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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 deregulation.  However, 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

Eric J. Conn 2 Comments

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

Lindsay A. DiSalvo Leave a comment
By Lindsay A. DiSalvo

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 →

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

Eric J. Conn 1 Comment

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

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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 Engages in Backdoor Rulemaking — Courtesy of the Supreme Court

Eric J. Conn 2 Comments

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

Eric J. Conn Leave a comment
By Jordan B. Schwartz and Eric J. Conn

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:

Continue reading →

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

Megan Shaked Leave a comment

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.

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

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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 →

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

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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

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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 →

OSHA 2015 in Review and a Forecast 5 Key OSHA Issues to Monitor in 2016 [Webinar Recording]

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On January, 21, 2016, members of Conn Maciel Carey’s national OSHA Practice Group delivered a webinar regarding “OSHA 2015 in Review and a Forecast 5 Key OSHA Issues to Monitor in 2016.”

The ball has dropped, the confetti has been swept out of Times Square, and 2015 is in the books.  It’s 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 this final year of the Obama Administration?  This webinar event reviewed enforcement and rulemaking issues from 2015, and identified the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

Topics covered included: Continue reading →

OSHA Criminal Cases on the Rise

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By: Eric J. Conn and Kate M. McMahon

In the forty plus years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – fewer than two per year – and only approximately a dozen have resulted in criminal convictions. Historically, the prosecutions typically have targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with underlying regulatory violations relating to an employee fatality. In other words, the “cover-up,” so to speak, was worse than the crime. Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also were more likely to face charges.

One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act (“OSH Act”)OSH Criminal 3 is that it is challenging to prove a criminal violation under the Act. Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.

Here is how it works. Section 17(e) states:

“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”

Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).

Accordingly, if an employer’s willful violation of an OSHA standard causes the death of an employee, Continue reading →

OSHA Impact of NLRB’s Recent Joint-Employer Decision

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By Kara M. Maciel, Chair of Conn Maciel Carey’s Labor • Employment Practice and Eric J. Conn, Chair of Conn Maciel Carey’s OSHA Practice

The Browning-Ferris Decision

On August 27, 2015, the National Labor Relations Board (“the Board”) “refined” its standard for determining joint-employer status pursuant to its decision in the Browning-Ferris Industries case.  In a 3-2 party-line decision, the NLRB reversed an August 2014 ruling that found Leadpoint Business Services Inc. to be the sole employer of the workers at the BFI recycling faciliBFI NLRB Casety where the local Teamsters union attempted to organize.  As part of its reversal, the Board announced a new joint-employer standard that is significantly broader and more inclusive than the standard the Board has upheld for the past 30 years.

In its “restatement” of the legal standard, the Board explained that it may find two or more entities are joint employers if:

  1. They are both employers within the meaning of the common law; and
  2. They share or co-determine those matters governing the essential terms and conditions of employment.

In evaluating the control an entity has over essential terms and conditions of employment, the Board will assess the actual exercise of direct and/or indirect control, as well as determine whether such control has been reserved by the entity in question.  To make this determination, the Board will consider, for example, whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary or whether it has reserved the authority to exercise such indirect influence.  The Board also took an inclusive approach in defining the terms and conditions of employment to mean dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; assigning work; and determining the method and manner of work among other considerations related to hiring, firing, supervision, and wages/hours.

Under its new standard, the Board determined that BFI was a joint employer with Leadpoint because BFI possessed direct and indirect control over essential terms and conditions of employment of the workers supplied by Leadpoint.  It also determined that BFI reserved authority to control such terms and conditions, which added additional support to its finding in favor of joint employer status.

Application of the Browning-Ferris Decision

This new standard adopts more of a “totality of the circumstances” approach, requiring “a full assessment of the facts” in each case.  The dissenting Board members criticized such an approach, pointing out that it provides little to no predictability or certainty in who would be considered a joint-employer, and could potentially allow the most tangential evidence to suffice to support joint-employer status.  The majority, however, responded that a definitive formula is not appropriate for this type of evaluation and that a full assessment of the facts and incidents should prevent a finding of joint-employer status where there is only tenuous indications of control in a relationship.  In its explanation of how the standard will be employed, the majority made clear that a finding of joint-employer status will be a very fact-specific assessment and require a case-by-case analysis of the level of control asserted by the putative joint-employer.

Although the majority claims that this new standard is simply a “return to the traditional test used by the Board,” in actuality this standard is completely different from prior iterations and will significantly expand coverage of thNLRB Logoe joint-employer relationship through consideration of

Continue reading →