PC Blog

Combustible Dust Standard from OSHA Not on Fast Track

Gary McCarty — Fri, 03 Feb 2012 18:37:50 +0000

The Occupational Safety and Health Administration (OSHA) has moved the development of regulations to control combustible dust hazards to its long-term agenda despite pleas from the Chemical Safety Board to fast track the rules, according to a report from the Associated Press.

Combustible dust can be generated from most substances—plastics, metals, chemicals and foods—especially when ground or rendered finely enough. It can then spontaneously combust given the right environmental triggers.

A 2006 study by the board found at least 281 dust explosions and fires in the U.S. between 1980 and 2005. The accidents killed 119 workers and injured another 718. According to more recent figures, there's been no change in the frequency of deaths and injuries from dust accidents, despite more inspections and an OSHA education program.

In OSHA's just-released, twice-yearly regulatory agenda, the only notation about a combustible dust regulation was "next action undetermined."

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.

EBSA Delays Plan Disclosure Requirement by Three Months

Gary McCarty — Thu, 02 Feb 2012 18:24:53 +0000

The U.S. Department of Labor's Employee Benefits Security Administration (EBSA) has issued a final rule that will provide employers sponsoring pension and 401(k) plans with information about the administrative and investment costs associated with providing such plans to their workers. The department also announced a 3-month extension in the effective date of this rule, meaning service providers must be in compliance by July 1, 2012, for new and existing contracts or arrangements between Employee Retirement Income Security Act-covered plans and service providers.

"As President Obama has said, we're at a make or break moment for the middle class and those trying to reach it. What's at stake is the American value that hard work pays off. The common-sense rule that we are finalizing today will shed light on the true costs of 401(k) accounts and ultimately reward those working hard and saving for retirement," said Secretary of Labor Hilda L. Solis. "This rule, and its companion participant-level fee disclosure rule, will greatly increase the level of transparency in retirement plans. When businesses that sponsor retirement plans, and the workers who participate in those plans, get better information on associated fees and expenses, they'll be able to shop around and make informed decisions that will lead to cost savings and a larger nest egg at retirement."

The Treasury Department's proposal will reduce regulatory burdens and make it easier for retirees to choose to receive their benefits as a stream of income in regular payments for as long as they live. These flexible "lifetime income" options can provide greater certainty in retirement and minimize the risk of retirees outliving or underutilizing their retirement savings, according to an EBSA statement.

DOL Proposal Expands Eligibility of FMLA Leave for Military, Airline Flight Crews

Gary McCarty — Tue, 31 Jan 2012 19:25:59 +0000

The Department of Labor (DOL) has issued proposed new rules regarding the eligibility of military family members and airline flight crews under the Family and Medical Leave Act (FMLA).

The proposed language would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the law covers only family members of "currently serving" service members. Additionally, the proposal expands the military family leave provisions of the FMLA by extending qualifying exigency leave to employees whose family members serve in the regular armed forces. Currently, the law only covers families of National Guard members and reservists.

For airline flight crew employees, the proposed revision makes the benefits of the FMLA more accessible. It would add a special hours of service eligibility requirement for them and specific provisions for calculating the amount of FMLA leave used that better take into account the unique — and often difficult-to-track — hours worked by crew members.

Retaliation Charges Up in Fiscal Year 2011 EEOC Filings

Gary McCarty — Mon, 30 Jan 2012 13:45:39 +0000

The Equal Employment Opportunity Commission (EEOC) received 36,344 retaliation complaints in fiscal year 2011, an increase of three percent from the year prior, making them the largest single block of filings. In all, the EEOC fielded 99,947 discrimination complaints, a slight increase from the previous year's 99,922.

Fiscal year 2011 ended Sept. 30.

Through its enforcement, mediation and litigation efforts, the EEOC also said it obtained a record $455.6 million in relief during fiscal 2011, up $51 million from the previous year.

Other charges involved sex discrimination (28.5 percent of the total, but at 28,534 filings down 1.7 percent from the previous year); disability discrimination (25,744 and 25.8 percent of the total filings); and age discrimination (23,465 and 23.5 percent of the total).

Employers, make sure your policies promote fairness and discourage discrimination. To help you develop sound policies, please consult Personnel Concepts' EEO Compliance Program. Get your copy today.

OSHA Form 300A Injury and Illness Summary Must Be Posted by Feb. 1

Gary McCarty — Fri, 27 Jan 2012 14:28:29 +0000

The Occupational Safety and Health Administration (OSHA) Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted in a conspicuous location by Feb. 1 of each year and left up for viewing until April 30. The summary lists only numbers of affected employees by category.

Companies that operate in more than one location must complete a separate summary for each of them.

At the same time, covered employers are required to complete the OSHA Form 300, Log of Work-Related Injuries and Illnesses, which is a more detailed document specifying names of ill and injured employees. This form should not be posted in any location visible to anyone not employed by the company and, if posted, must have the employees' names redacted for privacy purposes. In short, posting of the Form 300A is sufficient, and optional posting of the Form 300 can create headaches.

The OSHA Form 300 must be retained for five years.

Employers with ten or fewer employees and employers in certain industry groups are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A complete list of exempt industries in the retail, services, finance and real estate sectors is posted on the OSHA Web site.

OSHA Hazard Communication Standard Approval Delayed

Gary McCarty — Tue, 24 Jan 2012 17:50:03 +0000

The 90-day review period for the Occupational Safety and Health Administration (OSHA) revised Hazard Communication Standard (HAZCOM) passed yesterday (Jan. 23, 2012) with no approval by the Office of Management and Budget (OMB), which must review all regulations for economic impact and other issues. The OMB Web site, however, indicates that its review will be completed in February 2012.

The revised HAZCOM standard incorporates the United Nations-initiated Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

Personnel Concepts will continue to monitor the development and approval of this new standard and keep you informed here and on our main Web site.

UCSD Med Center Settles Over I-9 Discrimination Charge

Gary McCarty — Mon, 23 Jan 2012 19:00:04 +0000

The Department of Justice (DOJ) and its Office of Special Counsel for Immigration-Related Discrimination announced that the University of California San Diego Medical Center has reached a "six-figure" settlement over its practice of requiring excessive documentation from noncitizen employees during the Form I-9 work authorization process.

Specifically, the DOJ says UCSD committed "document abuse" by requiring Legal Permanent Residents to provide copies of their green cards even though they had already met I-9 documentation requirements by presentation of a List B (driver's license) and List C (unrestricted social security card) document.

Under the settlement, the hospital has agreed to pay $115,000 in civil penalties, one of the highest penalties ever assessed. The hospital has also agreed to train its personnel in the proper I-9 documentation procedures.

Employers, for a better understanding of how to avoid these types of mistakes, get yourself a copy of Personnel Concepts' I-9 Compliance Kit today.

EEOC Seeks Commentary on New Strategic Plan for FY 2012-2016

Gary McCarty — Thu, 19 Jan 2012 18:27:01 +0000

The Equal Employment Opportunity Commission (EEOC) is seeking commentary on its proposed Fiscal Year 2012-2016 Strategic Plan.

The draft plan envisions three strategic goals: 1) "to combat employment discrimination through strategic law enforcement"; 2) "to prevent employment discrimination through education and outreach" and by establishing community partnerships; and 3) "to ensure that the EEOC delivers excellent service through effective systems, updated technology, and a skilled and diverse workforce."

Comments made must be submitted by 5 p.m. ET on Feb. 1, 2012, at strategic.plan@eeoc.gov or by mail to Office of the Chair, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507. This draft plan has not been approved by the commission and is still under review.

Congress requires the publishing of new strategic plans by federal government agencies every four years. The current EEOC strategic plan was enunciated in July 2008 and holds sway through the end of 2012.

OSHA Orders Pilot Reinstated after Retaliation Termination for Reporting Mechanical Problems

Gary McCarty — Wed, 18 Jan 2012 17:23:06 +0000

The Department of Labor's Occupational Safety and Health Administration (OSHA) has ordered AirTran Airways, a subsidiary of Dallas, Texas-based Southwest Airlines Co., to reinstate a former pilot who was fired after reporting numerous mechanical concerns. The agency also has ordered that the pilot be paid more than $1 million in back wages plus interest and compensatory damages. An investigation by OSHA's Whistleblower Protection Program found reasonable cause to believe that the termination was an act of retaliation in violation of the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21.

"Airline workers must be free to raise safety and security concerns, and companies that diminish those rights through intimidation or retaliation must be held accountable," said OSHA Assistant Secretary David Michaels. "Airline safety is of vital importance, not only to the workers, but to the millions of Americans who use our airways."

The pilot's complaint alleged that the airline removed him from flight status on Aug. 23, 2007, pending an investigative hearing regarding a sudden spike in the pilot's mechanical malfunction reports, or PIREPS. The airline held an internal investigative hearing on Sept. 6, 2007, that lasted 17 minutes. Seven days later, the airline terminated the pilot's employment, claiming that he did not satisfactorily answer a question regarding the spike in reports. OSHA found that the pilot did not refuse to answer any questions during the hearing, answers to questions were appropriate, and the action taken by the airline was retaliatory.

"Retaliating against a pilot for reporting mechanical malfunctions is not consistent with a company that values the safety of its workers and customers," added Michaels. "Whistleblower laws are designed to protect workers' rights to speak out when they have safety concerns, and the Labor Department will vigilantly protect and defend those fundamental rights."

Either party to the case can file an appeal with the Labor Department's Office of Administrative Law Judges, but such an appeal does not stay the preliminary reinstatement order.

Employers, employment-based lawsuits are on the rise, so be sure to cover all your bases when carrying out reductions in force or terminations. Get yourself a copy of Personnel Concepts' Wrongful Termination Prevention Kit and learn all the applicable laws and regulations.

Top 10 OSHA Willful, Repeat and Serious Violations of 2011

Gary McCarty — Tue, 17 Jan 2012 16:06:22 +0000

Willful violations, with fines of up to $70,000, occur when the Occupational Safety and Health Administration (OSHA) deems the accident to have been due to complete indifference to or disregard for OSHA safety standards. The agency just released its list of the Top 10 willful and repeat violations, which are:

Excavation protective system, 84 violations
Fall protection, 67 violations
Process safety management, 45 violations
Grain handling facilities, 42 violations
Asbestos, 37 violations
Lockout/tagout, 35 violations
Machine guarding, 25 violations
Specific excavation requirements, 24 violations
General recording criteria, 23 violations, and
General duty clause, 22 violations.

Repeat violations, also with fines of up to $70,000, occur when the same or similar incident happens at any work site of the same company or owner. Last year's Top 10 repeat violations were:

Fall protection, 646 violations
Scaffolding, 439 violations
Excavations, protective systems, 119 violations
Hazard communication, 112 violations
Lockout/tagout, 109 violations
Electrical, wiring methods, 92 violations
Ladders, 89 violations
Machine guarding, 88 violations
Electrical, general requirements, 86 violations, and
Aerial lifts, 81 violations.

Serious violations carry a maximum fine of $7,000. The Top 10 serious violations for 2011 were:

Scaffolding, 6,324 violations
Fall protection, 6,022 violations
Hazard communication, 3,953 violations
Lockout/tagout, 2,926 violations
Electrical, wiring methods, 2,835 violations
Ladders, 2,787 violations
Powered industrial trucks, 2,582 violations
Machine guarding, 2,433 violations
Respiratory protection, 2,361 violations, and
Electrical, general requirements, 2,198 violations.