OSHA Workplace Inspections Increase Slightly in 2017

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By Kathleen Jennings (kjj@wimlaw.com)

In fiscal 2017, Occupational Safety and Health Administration inspectors finished 32,396 inspections, according to agency data.  This is a slight increase from the 31,948 inspections completed in fiscal 2016 (which was the fewest inspections OSHA conducted in 20 years). In contrast, in both fiscal 2011 and 2012, OSHA conducted 40,600 inspections each year. So, while we saw a slight increase in the number of OSHA inspections this year, the overall number is still well below the peak Obama administration years.

What makes this slight increase in the number of OSHA inspections surprising is that OSHA has had to decrease its staff numbers due to a decline in its budget.  What seems to be happening is that OSHA has been concentrating its resources on the types of inspections that had the most impact, in terms of preventing fatalities, severe injuries, and work illnesses.

The industry that saw the greatest increase in inspections was construction, up 9% from 2016.  This may be due, in part, to a resurgence of construction in the economic recovery.

Due to a new fine structure, average fines were up in 2017.  The average fiscal 2017 fines were $65,228 for a willful violation, up 57 percent; $11,359 for a repeat violation, up 30 percent; and $3,553, for a serious violation, up 48 percent.

We expect to see a similar pattern for 2018.

We wish everyone a safe New Year!

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters.   She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Update: OSHA Electronic Reporting Delayed Again–Until December 31, 2017.

OSHA

By Kathleen Jennings (kjj@wimlaw.com)

The twice-delayed deadline for OSHA electronic reporting is upon us.  However, in a December 18 statement, OSHA extended the deadline for a third time, this time to December 31, 2017.  No reason was given for the extension.

As we discussed in a previous post, the following employers must electronically submit information to OSHA by whatever deadline OSHA finally settles upon:

•Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.

•Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually. These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

It is not clear what OSHA intends to do with the information after it is electronically submitted.  The Trump administration’s nominee to lead OSHA, Scott Mugno, who is Vice President for Safety at FedEx Ground, has not publicly discussed his thoughts on the rule.

Affected employers should not ignore this new electronic reporting rule.  Worksites that do not electronically submit records and are later inspected by OSHA could be cited for not complying with the rule, potentially a willful violation if OSHA believes the refusal was deliberate.

We will continue to provide updates on this issue.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

NLRB Makes Big Changes to the Law, Surprising No One.

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By Kathleen Jennings (kjj@wimlaw.com)

Anyone who knows anything about the National Labor Relations Board (NLRB) knows that its decisions tend to reflect the philosophy of the political party holding the White House. The current NLRB is proving to be no exception to that rule. Just this week, the NLRB issued two significant decisions that reverse precedents set during the Obama administration.
Joint employer doctrine. In Hy-Brand Indus. Contractors, Ltd, 365 N.L.R.B. No. 156, (12/14/17), the NLRB expressly overruled its 2015 Browning-Ferris Industries decision on the issue of when multiple entities could be considered joint employers of a group of employees. Browning-Ferris was controversial because it reversed 30 years of NLRB precedent and made the standard to prove a joint employer relationship less stringent, holding that a joint employer relationship could be supported by evidence that a company merely had indirect or potential control over workers who were formally employed by another entity.

Hy-Brand takes us back to the previous standard, under which multiple entities could be considered joint employers of a group of employees only if each had exercised direct and immediate control over a group of employees. Companies with franchise relationships or leased employees will be especially happy to see a return to this stricter standard.

Employee Handbooks. In The Boeing Company, 365 NLRB No. 154 ((12/14/17), the NLRB overruled the Lutheran Heritage precedent in a decision in a case involving the Boeing’s maintenance of a “no-camera” rule which banned workers from using devices to take photos or videos on job sites without permission. In the Lutheran Heritage case, the NLRB had barred neutrally worded employer handbook rules if they would be “reasonably construed” by an employee to prohibit the exercise of National Labor Relations Act rights.

In the just-released Boeing decision, the NLRB said that it will instead shift to a different test for analyzing workplace policies under federal labor law:
When evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. The Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1). As the result of this balancing, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):
Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in the Boeing case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.
The Board went on to note that the above three categories will represent a classification of results from the Board’s application of the new test, and that the categories are not part of the test itself. The Board will determine, in future cases, what types of additional rules fall into which category. The Board believes this new test will bring greater clarity to this area, but that remains to be seen. This Board is certainly giving employers more leeway in fashioning work rules that govern employee workplace conduct.
Kathleen Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Confidentiality Provisions in Settlement Agreements Under Fire

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the issues that has come to light in discussions of the recent allegations of harassment against high-profile corporate and entertainment figures is that of confidential settlement agreements. We have learned that in the past, women who have complained about harassment by these men have reached confidential settlements with the companies. In other words, the women received money and agreed to keep the amount and other terms of the settlement confidential. Now some are concerned that this enables serial harassers to continue their unacceptable conduct without warning to other employees or potential victims. Legislators in the states of Pennsylvania, New Jersey, and New York have introduced or are discussing the possibility of introducing legislation that would prevent the enforcement of such confidentiality provisions.

Confidentiality provisions in agreements that settle employment matters are very common. Employers generally insist on them if they are paying any significant amount of money to settle a claim or case. Companies prefer to keep significant monetary payments confidential to avoid encouraging other claimants to come forward also looking for money, and to avoid possible negative publicity. Companies often settle cases after analyzing the costs and risks of litigation, and not necessarily as an admission of guilt. Nevertheless, the payment of a large settlement may be perceived as an acknowledgement by the company that it did something wrong. This perception may not necessarily be true, but it will be bad for business.

The claimant also avoids public disclosure of her identity as a possible victim of bad behavior. And unlike a lottery winner, she may avoid hearing from “long lost relatives” who are eager to “reconnect” when they hear she has come into money.

On the flip side, however, the confidentiality provision effectively prevents the claimant from warning her co-workers to avoid, for example, going into the office of a company executive alone with the door locked.

How does the company balance its desire for confidentiality of a settlement with the prevention of future incidents of harassment by the harasser? Ideally, this is where the duty to take prompt, effective remedial action comes into play. An employer has a duty to take prompt, effective remedial action when it learns of harassment in the workplace. An effective remedial action is one that prevents the harassment from happening again, which is often judged in hindsight. The most effective way a company can prevent a harasser from harassing company employees again is to terminate the harasser’s employment. There are also less harsh but still effective ways for a company to make the point to the harasser that workplace harassment will not be tolerated: suspension, demotion, transfer, withholding of bonuses, sensitivity training, etc. [We could do an entire blog post just on this issue.] In this environment of heightened awareness about workplace harassment, however, the worst thing a company can do is to take no action when it has evidence that harassment has occurred.

We will continue to use confidentiality provisions when appropriate to the client and circumstances. We will also continue to monitor any new developments in this area.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.