Announcing Conn Maciel Carey’s Complimentary 2017 OSHA Webinar Series

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

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

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


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

Wednesday, January 25th

Joint & Multi-Employers, Contractors and Temps

Tuesday, July 11th

New Slips, Trips
and Falls Rule

Thursday, February 8th

FAR/DOL Contractor “Blacklisting” Rule

Tuesday, August 15th

Standards Improvement Project: Proposed Changes to LOTO

Tuesday, March 28th

Meet OSHA’s New
Leadership Team

Tuesday, September 12th

New Cal/OSHA
Enforcement Issues

Tuesday, April 11th

Addressing Employee
Complaints

Tuesday, October 17th

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

Wednesday, May 16th

OSHA’s Fatality &
Injury Reporting

Tuesday, November 14th

Interpretations and Variances: Trump Era Regulatory Strategy

Tuesday, June 6th

OSHA PSM and
EPA RMP Update

Tuesday, December 12th

See below for descriptions of the
webinars and registration links

Continue reading

New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions

On April 1st, the Washington Legal Foundation (WLF) published a Legal Backgrounder prepared by Eric J. Conn entitled: “New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions.”

The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety WLF Article Imageviolations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:

“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”

The article concluded that:

“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”

Here is a link to the full article.

Expect More Comprehensive OSHA Inspections Under a New “Enforcement Weighting System”

By Amanda R. Strainis-Walker and Eric J. Conn

Over the course of the next year, employers can expect to see longer, more comprehensive OSHA inspections that focus on complex safety and health hazards. This change is associated with OSHA’s new enforcement protocol it refers to as the “Enforcement Weighting System” that uses a new metric called the “Enforcement Unit.”

Historically, OSHA operated under the assumption that more inspections are better. OSHA’s philosophy was that the more workplaces that OSHA is able to inspected, the greater the impact OSHA would have on safety and health, and the more employees it would be able to protect. At the end of every year, the national office would produce data and graphs showing the number of inspections, and gave no consideration for the different types of inspections or the range of complexity of the issues faced in each inspection. It was the classic quota protocol with the classic weaknesses that quota cause – driving enforcement to the simplest, quickest hitting inspections available.

A traditional inspection at a small construction site can last as little as a couple of hours with only one compliance officer, whereas a wall-to-wall inspection at a petrochemical manufacturing plant could last days, if not months, requiring multiple compliance officers and specialists. Under OSHA’s historical tracking system, both of those types of inspections were counted as the same unit of Inspection Weighting 2measure – one inspection. To account for this wide variation in resources that inspections can consume, in personnel and man hours, OSHA has adopted the new Enforcement Weighting System.

The new tracking system kicked in at the start of the new federal fiscal year. OSHA piloted the system over the two previous fiscal years. At the core of the new Enforcement Weighting System is the introduction of a new unit of measure for inspections – the Enforcement Unit. Different types of inspections are assigned a different number of Enforcement Units. For example, the simple, small construction site inspection would be assigned a single Enforcement Unit, whereas the wall to wall chemical facility inspection would receive seven Enforcement Units.

Enforcement Units will be the new metric that OSHA’s national office evaluates at the end of the fiscal year and tracks from year-to-year to evaluate enforcement performance of its various regions and area offices.

Assistant Secretary of Labor for OSHA, Dr. David Michaels, explained in the Memorandum announcing the Enforcement Weighting System:

While [the old] metric served a useful purpose, it penalized those field managers that took on more complex inspections that require a great amount of CSHO effort.

The new Enforcement Weighting System is designed to Continue reading

Announcing Conn Maciel Carey’s 2016 OSHA Webinar Series

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As we enter the home stretch of the Obama Administration’s control of OSHA, we have seen OSHA increase enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, and from more criminal referrals to a heavy dose of public shaming. Accordingly, it is more important now than ever before to be prepared.

Conn Maciel Carey’s complimentary 2016 OSHA Webinar Series, put on by attorneys in the firm’s national OSHA Practice Group, is designed to give you the tools to avoid becoming an OSHA-enforcement poster child. 

To register for any of the individual webinars in the series, click on the links below the program descriptions. To register for the entire 2016 series, please send an email to info@connmaciel.com, and we will assist. If you missed some of the programs in the 2015 OSHA Webinar Series, here’s a link to an archive of recordings of those webinars.


Top 5 OSHA Issues in 2016

Thursday, January 21st

Key Cal/OSHA Issues

Thursday, July 21st

OSHA’s Fatality & Injury
Reporting Rule

Thursday, February 11th

Multi- and Joint-Employers,
Contractors and Temps

Tuesday, August 16th

OSHA PSM and EPA RMP Update

Wednesday, March 16th

Contest and Settle OSHA Citations

Wednesday, September 7th

 Whistleblower Investigations

Tuesday, April 19th

OSHA Impact of the Election

Tuesday, October 25th

GHS HazCom Standard Roll-out

Wednesday, May 11th

OSHA Issues in Acquisitions

Tuesday, November 8th

Proposed Injury & Illness
Recordkeeping Rules

Tuesday, June 7th

Bathroom Issues under OSHA, Employment law and the ADA

Tuesday, December 13th

See below for descriptions of the
webinars and registration links

Continue reading

Workplace Violence: No Longer Just a Police Issue [Webinar Recording]

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, Workplace Violence Webinar Cover SlideHR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to Continue reading

Breaking News – OSHA Max Penalties Set to Nearly Double

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

For as long as I have been practicing OSHA law (more than 15 years now), four things have remained constant:

  1. The maximum per violation penalty that OSHA has been permitted by the OSH Act to assign to Serious violations has been $7,000, and for Repeat or Willful violations it has remained $70,000;
  2. The Assistant Secretary of Labor for OSHA makes an annual pilgrimage to the Hill where he or she pounds on the table and demands that Congress enact OSHA reform legislation to increase the maximum penalties OSHA can assign (with common refrains like: “employers can be fined more for mistreating cattle on federal lands than for allowing an employee fatality!”);
  3. There has been one iteration or another of such reform legislation (usually dubbed the “Protecting America’s Workers Act”) floating around Congress and stalling before it even gets out of Committee; and
  4. OSHA proposes penalties on average at a level 50% below the maximum penalty level currently authorized.

Yet, here we are in 2015 with a Republican-controlled House and Senate, and through the backdoor comes a Congressionally-mandated increase to maximum OSHA civil penalties of nearly 80%. A bizarre parting gift by now former Speaker of the House John Boehner, no doubt part of his effort toBudget Act “clear the barn” for his successor. Color me shocked.

Here are the details. The much publicized two-year bipartisan budget agreement allowed the federal government to remain open and not default on the U.S. debt, but it also contained lesser known (or completely unknown) provisions, including one that allows for a nearly 80% increase in OSHA penalties in the next year, as well as indefinite periodic increases to match the rise of the cost of living in the future.

Specifically, the “Bipartisan Budget Act of 2015” was passed by both houses of Congress and signed into law by President Obama last week (November 2nd). Section 701 of the Budget Act, entitled “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” gives OSHA the green light to increase penalty amounts to catch up with cost of living adjustments since the last time OSHA’s civil penalties were raised (1990).

The Civil Penalties Adjustment section of the 2015 budget bill was hammered out between Speaker Boehner and the White House with apparently no input from House or Senate members. It provides for a one-time “Catch-up Adjustment” that must be implemented by no later than August 1, 2016. The catch-up adjustment is tied to the percentage rise in the Consumer Price Index (CPI) from the time OSHA last increased its civil penalties in 1990 through November 17, 2015. The actual percentage increase will not be known until next week, but based on recent CPI trends,Penalty Inflation Adjustment Act the increase is expected to be approximately 80%.

Assuming a penalty inflation adjustment of approximately 80%, OSHA will be imminently increasing the maximum civil penalty for alleged Serious violations from $7,000 per violation to approximately $12,000, and for alleged willful or repeat violations from $70,000 per violation to approximately $120,000. After the initial catch-up increase, OSHA is also authorized by the law to Continue reading

Welcome to the OSHA Defense Report Blog!

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The national OSHA – Workplace Safety Practice Group at Conn Maciel Carey is proud to launch The OSHA Defense Report!

The OSHA Defense Report is a blog designed to bring you recent developments in workplace safety and health law, but not just to tell you that something has happened, but to talk about why you should care, and how it will affect you and your Company.CMC Logo

We started the OSHA Defense Report because we frequented several useful blogs dedicated to practical day-to-day workplace safety & health issues, but none that dive deep into workplace safety & health legal and regulatory issues. This blog is intended to fill that void.

The OSHA Defense Report will be the place to go to learn about the significance of new OSHA law developments, such as OSHA enforcement trends and initiatives, new interpretations and Review Commission decisions, and relevant OSHA policy and Rulemaking issues.  We will offer practical advice with creative solutions with the goal to provide guidance to minimize exposure to costly liability.  We hope you visit this site often and provide us with your feedback on what topics you are interested in.

Enjoy!