By Rachel L. Conn
The California Legislature introduced SB 553 – workplace violence: restraining orders and workplace violence prevention – earlier this year despite Cal/OSHA’s regulation on Workplace Violence Prevention in General Industry (WPV Standard) nearing the last stages of the rulemaking process. SB 553’s original version tracked the current Cal/OSHA Violence Prevention in Health Care Standard (8 CCR 3342) instead of the Cal/OSHA General Industry WPV Standard. This was problematic because SB 553 had more extensive requirements than the Cal/OSHA draft WPV Standard. It also included retail-specific provisions on shoplifter training and a prohibition on requiring workers who are not dedicated safety personnel from confronting suspected active shoplifters.
However, last week the bill was amended to align more closely with the draft Cal/OSHA WPV Standard. The bill passed committee on Friday and will now go to a full vote in the California Legislature. The latest version of the bill includes the following: Continue reading
By Eric J. Conn and Mark Trapp
We wanted to reach out to notify you about OSHA’s latest gift to organized labor. Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.” Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces. Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.
History of Union Access to Workplaces During OSHA Inspections
As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013. The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”
OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking. Here is the existing regulatory text: Continue reading
You are cordially invited to attend the Cal/OSHA and California Employment Law Summit presented by Conn Maciel Carey LLP.
Conn Maciel Carey LLP’s Inaugural Cal/OSHA and California Employment Law Summit is an in-person program presented by the California-based attorneys in CMC’s national OSHA • Workplace Safety and Labor • Employment Practice Groups, to update California employers on important developments involving workplace safety and health issues in California.
Learn How to Navigate California Requirements
On Thursday, August 10, 2023, Aaron Gelb, Rachel Conn, Megan Shaked, Valerie Butera, and Victoria Voight presented a webinar titled Enough on Fed OSHA, Here’s What to Know About the State OSH Plans.
Twenty-two states have OSHA-approved state plans that cover both private and state and local government workers. State plans have their own penalty reduction policies and procedures that may differ from OSHA but must be at least as effective. While the regulations are often like OSHA, they are not identical – employers in state-plan states cannot assume that complying with federal OSHA regulations will suffice. Keeping up with the changes in policies and procedures in state plan states can also be challenging for employers. During this webinar, we discussed how state plans differ throughout the country.
Participants in this webinar learned: Continue reading
By Megan Shaked, Samuel Rose, and Rachel Conn
Revised Draft Indoor Heat Illness Standard Released
On August 4, 2023, the Standards Board issued its latest revised draft of the Indoor Heat Illness Prevention Standard. During the previous comment period, there was extensive discussion regarding lowering the temperature at which the regulation would apply. However, the latest revised draft maintains the 82 degrees Fahrenheit indoor temperature trigger. Nonetheless, there were notable changes: Continue reading
Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Megan Shaked has been elevated to Partner.
Ms. Shaked, a seasoned employment litigator and Cal/OSHA practitioner based in San Francisco, CA, represents employers on a wide range of employment matters, including Cal/OSHA investigations and appeals of Cal/OSHA citations, claims of discrimination and harassment, wrongful termination, wage and hour violations, and whistleblower actions. She also conducts workplace harassment prevention training, and counsels employers on workplace safety compliance, the development of employee handbooks, hiring and termination decisions, leaves of absence and accommodations, and wage and hour compliance.
Ms. Shaked was an integral part of the expansion of CMC’s California Practice when she joined the firm back in 2018. And now she is a key player in the next big expansion of the firm’s California Practice. Continue reading
By Rachel Conn, Samuel Rose, and Megan Shaked
During last week’s California Occupational Safety and Health Standards Board meeting, the spotlight was on silica. But an equally clear message was front and center throughout the meeting – Cal/OSHA has a packed rulemaking agenda.
Here’s the latest on Cal/OSHA rulemaking and what to expect in the coming months:
Silica Emergency Temporary Standard
The Standards Board granted, in part, Petition 597, to amend the current regulation on Occupational Exposures to Respirable Crystalline Silica (section 5204) via Emergency Temporary Standard (ETS) to address the growing number of reported cases of advanced silicosis among workers exposed to silica in engineered stone fabrication.
Following extensive public comment, Cal/OSHA argued that an ETS would be Continue reading
On Thursday, July 20, 2023, Eric J. Conn, Rachel Conn, Dan Deacon, and Darius Rohani-Shukla presented a webinar covering a Mid-Year Review of OSHA Enforcement and Regulatory Developments.
Having shared a series of predictions during our January webinar regarding OSHA’s expected enforcement and rulemaking priorities in Year 3 of the Biden Administration, we took stock of what has happened at DOL and OSHA during the first 6 months of 2023, discussed surprise developments, and looked ahead at the remainder of 2023 and beyond. We took a close look at enforcement trends, including new emphasis programs, and checked in on various rulemakings likely to impact the regulated community. At the same time, we evaluated what has been happening with OSHA’s budget and staffing trends. Finally, we looked ahead to what employers can expect from OSHA over the balance of this presidential term.
Participants in this webinar learned: Continue reading
By Eric J. Conn and Daniel C. Deacon
The White House has given final sign-off on OSHA’s Amended Regulation — Improved Tracking of Workplace Injuries and Illnesses (aka the Electronic Recordkeeping or E-Recordkeeping Rule). The Preamble and the Final Rule have been sent to the Federal Register for official publication. The rule package will appear in the Federal Register this Friday (July 21, 2023), but in the meantime, the Administration has posted a pre-publication version of the final rule package. So we now have the final regulatory text, OSHA’s rationale for its final rulemaking decisions, and its analysis of the stakeholder comments about the proposed amended rule. Here’s what we know.
Details About the Final Rule
The final amended E-Recordkeeping Rule will take effect on January 1, 2024. The regulatory text and the Preamble make clear that because this final rule becomes effective before the next E-Recordkeeping submission deadline in 2024, OSHA intends for March 2, 2024 to be the first submission deadline for the new information required to be submitted under this rule.
Unfortunately, OSHA has included each of the proposed changes in the final rule, and even worse, it added in an element that goes beyond what had originally been proposed. As a reminder, the proposed amended rule published by OSHA in March 2022 included three key revisions: Continue reading
Conn Maciel Carey LLP (CMC), a boutique law firm with national practices in Workplace Safety – OSHA/MSHA, labor and employment, and litigation, is delighted to announce that attorney Rachel L. Conn has joined the firm’s San Francisco, CA office as Chair of the California Practice.
Ms. Conn comes to CMC from Nixon Peabody, where she was the Head of the OSHA Practice. At CMC, Ms. Conn will lead the team representing California and national employers in inspections, investigations and enforcement actions involving Cal/OSHA, Federal OSHA, and other State OSH Plans, especially the West Coast DOSH states. With strong experience in labor and employment law, she will also help lead the California labor and employment defense practice. Continue reading
Conn Maciel Carey LLP (CMC), a Washington, D.C.-based boutique law firm with national practices in workplace safety (OSHA and MSHA), labor and employment, and litigation, is pleased to announce the opening of a Detroit Metro Area, Michigan office and the addition of Senior Counsel, Valerie Butera.
Ms. Butera is among a group of only twenty-five Occupational Safety and Health Law defense attorneys rated by Chambers USA, and the only Michigan-based OSHA attorney rated by Chambers. She has extensive experience representing employers and trade associations in the full range of workplace safety and health law regulatory and enforcement matters across a wide range of industries, from chemical and petrochemical manufacturing, to petroleum refining, and automotive, electric utility, manufacturing, construction, railway, grain, retail, hospitality, healthcare, and food services. Continue reading
By Aaron Gelb and Darius Rohani-Shukla
Continuing its effort to find new ways to proactively address perceived hazards across a variety of industries, OSHA launched another new Local Emphasis Program (“LEP”) on June 1, 2023, targeting the seafood processing industry in Region I. OSHA intends to use this LEP in an effort to mitigate hazards and improve safety standards in the seafood processing industry and related merchant wholesaler operations. Like the food manufacturing LEPs recently launched in Region V, this LEP will focus on machine guarding, lockout tagout, confined spaces, falls, and other critical safety concerns in the seafood processing industry.
Why is OSHA Targeting the Seafood Processing Industry? Continue reading
By Eric J. Conn and Ashley D. Mitchell
On May 30, 2023, the US Court of Appeals for the Eleventh Circuit issued an opinion in the case of Chewy, Inc. v. the US Department of Labor that is very important for US retailers and others who manage warehouses and major forklift operations.
The case involves a May 2019 OSHA citation issued to Chewy, Inc., a pet products online retailer, alleging a violation of the OSH Act’s General Duty Clause for the retailer failing to protect its warehouse employees from an “under-ride” hazard, which occurs when the lowest cross bar of a warehouse storage rack is high enough to allow a forklift to drive underneath, but low enough that upon driving underneath, it can pin the forklift operator between the cross bar and the seat/cab of the forklift. The citation arose out of a December 16, 2018, incident at Chewy’s Ocala, FL warehouse, when a standup forklift operator died by asphyxiation after becoming pinned between the forklift and a metal storage rack. This was the second under-ride incident at Chewy’s warehouse in a six-month period, although the first under-ride incident was not fatal. In the Ocala warehouse, Continue reading
On Thursday, June 8, 2023, Aaron Gelb, Mark Ishu, Dan Deacon and Ashley Mitchell presented a webinar regarding Uh Oh, OSHA’s Here: How to Prepare For and Manage OSHA Inspections.
Over the past year, the number of OSHA inspections has soared, especially since the COVID-19 pandemic eased, and the National Emergency has now come to an end. We are seeing, as part of OSHA’s focused effort to use (and sharpen) all the tools in its toolbox, more inspections, higher penalties, record numbers of $100K+ citation packages, and a continuing rise in willful and repeat citations and worker safety criminal prosecutions. OSHA continues, also, to look for new and creative ways to proactively inspect employers with targeted enforcement initiatives and emphasis programs, while also significantly expanding punitive measures such as the Severe Violator Enforcement Program (or SVEP), and the new Instance-by-Instance citation policy), creating a number of minefields for even the most conscientious employers. In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during an inspection, are more dire now than ever.
This webinar provided Continue reading
Conn Maciel Carey LLP (CMC) is honored to announce that the firm has been recognized as one of only three national law firms ranked in Band 1 Nationwide for Occupational Safety and Health (OSHA) Law for the 2nd year in a row. CMC remains the only “boutique” firm among the law firms recognized.
The recognition comes from Chambers and Partners, an independent research company that delivers detailed rankings and insight into the world’s leading lawyers and law firms. This is only the second year that Chambers has ranked the OSHA Law field, and CMC has been ranked Band 1 both years.
Chambers’ researchers identified CMC as “perhaps the foremost experts in workplace health and safety law.… CMC is made up of some of the best legal expertise that is available when it comes to safety and health matters…. They are keen to build a good relationship with their clients so that they can anticipate needs and exceed expectations.”
By Kara Maciel, Eric J. Conn, and Darius Rohani-Shukla
OSHA has unveiled another tool that will enhance its ability to investigate potential workplace safety violations affecting vulnerable workers who are victims of criminal activity, including sex and labor trafficking. Effective March 30, 2023, OSHA can now issue an important certification used to support two nonimmigrant visas, the U and T visas, that grant individuals immigration status when working with officials during criminal investigations and proceedings. Both the U visa and T visa were created in 2000 as part of the Victims of Trafficking and Violence Protection Act and are intended to provide undocumented workers or workers whose immigration status depends on their employer with the opportunity to report qualifying criminal activity (QCA) without jeopardizing their immigration status and/or risking retaliation by their employer. Now, OSHA can provide support to the visa applications of workers who bring forward credible allegations of a violation of a law that OSHA enforces, in situations where OSHA has detected specific QCA.
OSHA does not have the authority to issue U and T visas themselves. Rather, these visas are issued by Continue reading
Conn Maciel Carey LLP, (CMC) a boutique law firm with national practices in labor and employment, workplace safety (OSHA and MSHA), and litigation, is pleased to announce that Kimberly Richardson has become an Of Counsel attorney with the firm based out of the firm’s principal office in Washington, DC.
Ms. Richardson will provide counseling and litigation services related to workplace health and safety and employment-related matters. Throughout her 15 years of experience, Ms. Richardson has served as the lead in-house workplace health and safety attorney for multiple national and international organizations, where she advised executive leadership on matters pertaining to labor, employment, and OSHA compliance.
“I am elated to share Kimberly’s perspective as a former in-house corporate counsel with our clients and our attorneys as she prides herself on advising companies to create and prioritize robust compliance programs on the myriad of employment legal issues,” says Kara Maciel, Labor and Employment Practice Chair. “When corporate legal teams need advice on creating collaborative approaches to their ESG initiatives, Kimberly will be a strong leader of CMC’s team in providing strategic privileged counsel on the responsibilities that corporations will be facing in the years to come.”
“I could not be more excited to welcome the legendary Kimberly Richardson to our OSHA and L&E teams at Conn Maciel Carey,” says Eric Conn, OSHA Practice Chair. Continue reading
By Aaron Gelb, Eric Conn, and Ashley Mitchell
Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.
OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013, commonly referred to as “the Fairfax Memo.” The interpretation letter responded to an inquiry by a labor union about inspection rights:
“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”
The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):
“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding: Continue reading
On February 16, 2023, OSHA announced that it is inviting the public and workplace safety stakeholders to share their comments to assist the agency as it modernizes and enhances its Voluntary Protection Program (“VPP”). The deadline for comments is April 14, 2023.
Established in 1982, OSHA’s VPP is a program that recognizes workplaces that demonstrate best practices in safety and health management and serve as industry models. VPP generally requires employers to implement “effective” safety and health management systems (“SHMS”) programs as certified by OSHA, and maintain recorded injury and illness rates below the Bureau of Labor Statistics averages for their sectors. Once admitted to the program, an employer is exempt from “programmed” OSHA inspections, though VPP participants must be recertified every three to five years.
Per OSHA, “VPP is effective at reducing injuries and illnesses at participant worksites.” For example, the average VPP worksite had a Days Away Restricted or Transferred (“DART”) case rate of 53% below the average for its industry for non-construction participants and 60% below the average for its industry for site-based construction and mobile workforce participation for 2020 (calculated annually by the Office of Partnership and Recognition and based upon the injury and illness data submitted every year by the VPP participants). These lower than industry rates have been documented since 2001, showing, per OSHA, that “VPP has consistently reduced injury and illness rates in both construction and non-construction VPP worksites for two decades compared with the national average.”
Nonetheless, OSHA states that: Continue reading
On Thursday, February 23, 2023 at 10 a.m. PST / 1 p.m. EST, join the attorneys in CMC’s Cal/OSHA Practice Group for a webinar regarding an Annual Cal/OSHA Enforcement & Regulatory Update.
Cal/OSHA and the California legislature have continued to focus their efforts on extending workplace mandates associated with COVID-19, heat illness and wildfire smoke. This update will cover the transition from Cal/OSHA’s COVID-19 Emergency Temporary Standard to the Non-Emergency COVID-19 Rule as well as other workplace safety mandates that have been recently adopted or are under consideration.
Participants in this webinar will learn: Continue reading
On Thursday, January 26, 2023, the Partners in Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s 2022 in Review and 2023 Forecast.
As we approach the midway point of the Biden Administration, it’s time to look back and take stock of what we learned from and about OSHA during another very eventful year. More importantly, it is once again time to look ahead and discuss what employers should expect from OSHA during Year 3 of the Biden/Harris administration. In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group reviewed OSHA enforcement data and trends as well as changes to the SVEP program and new emphasis programs, rulemaking, and personnel developments from 2022. We also discussed the top OSHA issues employers should monitor and prepare for in the New Year.
Participants in this webinar learned: Continue reading
Entering MSHA’s third year under the Biden Administration, the mining industry should expect to see a more active and emboldened agency. The past year saw the completion of MSHA political leadership, and a renewed focus on rulemaking and enforcement. In the year to come, operators can expect to see at least two rules from the agency, specifically regarding MSHA’s long-awaited proposed rule on respirable crystalline silica – or respirable quartz as MSHA sometimes refers – and the final form or the Surface Mobile Equipment rule. In conjunction with the anticipated silica rule, MSHA continues to engage in increasingly aggressive enforcement regarding industrial hygiene at the nation’s mines. The coming year will be active from both an enforcement and rulemaking perspective, meaning it is as important as ever for operators to stay attuned to developments at MSHA.
Conn Maciel Carey’s complimentary 2023 MSHA Webinar Series includes free programs put on by the MSHA-focused attorneys in the firm’s national MSHA Practice Group and is designed to give employers insight into the changes and developments at MSHA during this active period for the agency.
To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2023 series, click here to send us an email request so we can get you registered. If you missed any of our past programs from the MSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important MSHA-related topic, please do not hesitate to contact us.
See below for the full schedule with program descriptions,
dates, times and links to register for each webinar event.
On Thursday, January 26, 2023 at 1 p.m. EST, join the Partners in Conn Maciel Carey’s national OSHA Practice Group for a webinar regarding OSHA’s 2022 in Review and 2023 Forecast.
As we approach the midway point of the Biden Administration, it’s time to look back and take stock of what we learned from and about OSHA during another very eventful year. More importantly, it is once again time to look ahead and discuss what employers should expect from OSHA during Year 3 of the Biden/Harris administration. In this webinar, the Partners in Conn Maciel Carey’s national OSHA Practice Group will review OSHA enforcement data and trends as well as changes to the SVEP program and new emphasis programs, rulemaking, and personnel developments from 2022. We will also discuss the top OSHA issues employers should monitor and prepare for in the New Year.
Participants in this webinar will learn: Continue reading
For the past two years, Conn Maciel Carey has represented a broad coalition comprised of California and national employers and trade associations from a diverse range of industries in advocating to the Cal/OSHA Standards Board about the roller coaster of COVID-19 emergency and non-emergency rulemaking, in the form of preparing numerous rounds of written comments, testifying in public meetings, and participating by invitation as one of only a small number of management-side representatives on a rulemaking Advisory Committee established by Cal/OSHA for the COVID-19 regulatory process. We have been intrinsically involved in the four iterations of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), and the COVID-19 Non-Emergency Rule that was recently adopted for a two-year term.
Those of you whose organizations participated in our California Employers COVID-19 Prevention Coalition know that together we accomplished a great deal, with material improvement for employers to the COVID-19 regulatory landscape in California. Our coalition’s input is reflected in the regulatory text of the Cal/OSHA COVID-19 ETS and now the COVID-19 Non-Emergency Rule, as well as in several batches of FAQs issued by Cal/OSHA attempting to address some of the concerns and recommendations we identified.
With the completion of the non-emergency rule now, we expect the Cal/OSHA Standards Board to transition in 2023 from the COVID-19 related rulemaking to its regulatory priorities that were forced to the backburner because of the pandemic, including work on: Continue reading
Earlier this month, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, as well as with independent contractors, interns, volunteers, and other types of workers. The proposed rule would require employers to withdraw any existing noncompete agreements and inform employees that noncompete agreements no longer apply. The proposed rule would also make it unlawful for an employer to enter into a noncompete agreement with an employee, to attempt to enter into such an agreement with an employee, or to suggest that an employee is bound by a noncompete agreement when the employee is not.
While the FTC may justify this proposed rule as necessary to allow workers to move freely without restrictions, we believe that this rule, if passed, would severely compromise a company’s ability protect its trade secrets and other confidential information, and could negate a company’s significant investment in valuable investments in its employees, including employee training. Indeed, there are countless reasons why a narrowly tailored noncompete agreement is a necessary tool that has been, and should continue to be, in an employer’s arsenal to protect its significant investment in its employees and the information to which they are privy.
The rule is currently open for comment. To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to advocate for the most reasonable FTC rule possible, with the goal of helping to shape any rule that the FTC ultimately promulgates in such a way that the rule is palatable to employers. Continue reading