OSHA Seeks Public Commentary on Combustible Dust

The Occupational Safety and Health Administration (OSHA) has issued an Advance Notice of Proposed  Rulemaking (ANPR) on developing a standard on combustible dust.

OSHA has identified the National Fire Protection Association (NFPA) and its standard NFPA 652 as the basis for the new OSHA standard.

An electronic comment form and instructions are available at www.regulations.gov in Docket No. OSHA-2009-0023, RIN 1218-AC41. The public commentary period closes Jan. 19, 2010.

Additional information on combustible dust explosions can be found in an OSHA Hazard Alert released in March 2008.


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.
GoTo top Top

DOL Releases 2010 Agenda: Welcome Back, Ergonomics

The Department of Labor (DOL) has released its agenda for the coming year, and it has a few surprises to spring on American business.

First (for discussion’s sake), the DOL wants each paycheck to come with a stub or explanation of hours worked, overtime paid and everything else that went into the computation of the amount.

Next, it’s eyeing the resurrection of the ergonomics standard that was rejected early in this decade, and with David Michaels now firmly in charge of OSHA, that standard should be forthcoming.

The 2010 agenda includes a new standard for combustible dust as well.

Finally, the retired Beck Poster will be replaced by one with Barack Obama’s interpretation of workers’ rights on it (you know, join a union now).

Full details here.


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.
GoTo top Top

David Michaels Confirmed by Voice Vote as OSHA Head

The Senate, without a committee confirmation hearing or discussion on the floor, has approved David Michaels as Deputy Secretary of Labor for Occupational Safety and Health, in other words, the chief of OSHA.

Michaels was confirmed along with a host of other nominees in a simple voice vote.

Michaels from the beginning was a controversial nominee who views ergonomics as a settled scientific issue and has said he will reinstate the previously withdrawn ergonomics standard in some form or another.

In the introduction to his book, Doubt Is Their Product, Michaels observes:

The vilification of any research that might threaten corporate interests as ‘junk science’ and the sanctification of its own bought-and-paid-for research as ‘sound science’ is indeed Orwellian–and nothing less than standard operating procedure today. …

…At its heart, this book documents the ways in which product defense consultants have shaped and skewed the scientific literature, manufactured and magnified scientific uncertainty, and influenced policy decisions to the advantage of polluters and the manufacturers of dangerous products.

The question remains–does Michaels himself have any doubt in his consistently anti-corporate worldview? That’s the question his critics want answered.


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.
GoTo top Top

Happy $40 Million Holiday Present to Mass. Wal-Mart Employees

Nabbed again!

Wal-Mart has agreed to fork over $40 million to employees past and present at its Massachusetts outlets after settling a 2001 lawsuit over abuse of time-card data, fudging on overtime and denying employees break time.

Employees who worked at those locations from 1995 to the present will receive checks ranging from $400 to $2,500, depending on length of service.

This is pretty much a universal pattern with Wal-Mart, who’s been settling wage claims right and left these days.

Employers, be aware that audits and complaint investigations will be more prevalent under the reign of Labor Secretary Hilda Solis, the self-proclaimed "new sheriff in town," so be prepared by hewing to all wage laws.

Personnel Concepts has prepared a series of posters and compliance kits to help you adhere to the laws and regulations of the DOL. Visit our Human Resource Tools section today.


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.
GoTo top Top

Jury Is In: Employment Cases On the Rise, Favor Employees

Not only are employment lawsuits on the rise, but so are victories for the employees in both court and the pocketbook.

According to Jury Verdict Research, a tracking agency, employees prevailed over employers in 61 percent of all employment trials in 2008 and walked away with a median award of $326,640, up from $204,000 just a year earlier, or a whopping 60 percent rise. Discrimination awards were up 16 percent from $208,000 to $241,119, with age discrimination being the number-one docket mover.

There’s a ray of hope for employers, however, if they can get their trials held in federal courts, where they prevailed 43 percent of the time as opposed to 37 percent in state courts. Median awards were 39 percent lower in federal courts as well.

Out-of-court settlements rose to $90,000, the highest in the decade, up 20 percent from 2007.

Data are not yet in for 2009, but expect rises in all categories in an increasingly fragile economy and with a more employee-friendly administration in Washington, D.C.

 

 


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.
GoTo top Top

Overtime Rounding Off: Feds Say OK, but Amazon Accused of Cheating

The Department of Labor (DOL) permits companies to round off overtime, "provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked."

The New Jersey Department of Labor and Workforce Development disagrees with the DOL and forbids the practice in the Garden State.

Now a class action lawsuit filed in Seattle accuses Amazon of cheating in its rounding and thus avoiding paying workers what’s properly owed them–to the tune of 15 minutes of overtime for every day worked. That’s a lot of unpaid wages that Amazon could face if found liable–the suit represents some 21,000 warehouse workers.

Let’s see, 21,000 X 15 = 315,000 minutes of lost overtime per day. Say each worker averages $10 an hour, that works out to $3,150,000 per day.

Worse, employees claim Amazon’s practice of rounding off to the nearest 15 minutes has been going on for years.

Ouch!

Amazon is not the only company being accused of nefarious timekeeping. Station Casinos in Nevada is accused of rounding off starting and ending times and thus cheating workers out of pay. Workers at Michigan Bell, the telecom, claim rounding off robs them of accrued overtime pay.

With the "new sheriff in town," Labor Secretary Hilda Solis, cracking down on wage and hour violations with an added posse of 250 new field investigators, businesses are advised to keep accurate overtime records and pay accordingly.

Get a copy of Personnel Concepts’ Fair Pay Overtime Rules Kit and keep the DOL at bay by maintaining proper records and compensating accordingly.


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.
GoTo top Top

Cheesecake Factory Forced into Consent Decree Over Sexual Harassment

It’s actually just one Cheesecake Factory location in Phoenix that was the subject of the Equal Employment Opportunity Commission (EEOC) lawsuit that led to a subsequent consent decree.

At that location, the EEOC charged that managers looked the other way while male kitchen staff sexually harassed male service staff, including acts such as dragging them into the refrigerator, grabbing their genitals and simulating rape.

As a result of the consent decree, that Cheesecake Factory will be monitored for two years by an outside ombudsman, and it must also pay restitution to the six harassed employees and conduct training for all employees.

Employers, allowing acts of sexual harassment to take place can lead to similar EEOC actions and even criminal charges for those directly involved. Stay on top of your workforce and snuff out harassment of any kind before it gets started. In this endeavor, Personnel Concepts’ Federal Harassment in the Workplace Program will help you establish on-site policies and procedures to prevent harassment.


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.
GoTo top Top

GINA Regs May Bar Employers from Accessing Social Media

Though the Genetic Information Nondiscrimination Act (GINA) has already taken effect, the law’s regulations are still in a state of flux at the Equal Employment Opportunity Commission (EEOC) and have yet to be finalized.

One of the contentious issues that is being weighed internally and through public commentary is the right, or lack thereof, of employers to access employees’ or job applicants’ social media sites such as Facebook and MySpace.

Since GINA bars the use of genetic information in any employment or health care decision, many are worried that employers who snoop into employees’ Facebook, MySpace, LinkedIn or other social media pages might find evidence of a genetic nature, such as a family history of cancer, that could result in adverse decisions.

Public commentary, which has now been closed, is running about 50-50 in favor and against the barring of employers from viewing the social media sites of their employees or job applicants. Major business groups such as the U.S. Chamber of Commerce are in full favor of allowing the practice of using the social media for background checks, while the ACLU and FDIC have come out strongly in favor of an outright ban.

What’s interesting is that this is the first time a government agency has considered the employer practice of using the social media for background checks. Horror stories abound of people who’ve lost jobs for having posted indiscriminate party pictures and the like on their pages. If doing so can be considered discriminatory, then the affected employees can file complaints with the EEOC and eventually sue their employers.

It will be interesting to see the outcome of this debate, and with public commentary period closed, the regulations should be finalized and released soon.

Meanwhile, for both employers and health care providers and insurers, GINA is in full effect, and to help you understand your obligations and rights, Personnel Concepts has prepared a comprehensive and useful Genetic Information Nondiscrimination Compliance Kit. Get yours today.


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.
GoTo top Top

Two Courts Agree that Rehabilitation Act Covers Contractors

The Ninth Circuit Court recently ruled that, unlike the Americans With Disabilities Act (ADA) which covers only those who are in an employee-employer relationship, the Rehabilitation Act is worded more loosely to cover any "otherwise qualified individual."

Thus in reviewing a lawsuit against a hospital, the court ruled in favor of an independent contractor who claimed he had been denied employment based on a disability. The hospital for its part claimed the plaintiff had no legal standing since he was not an employee, as required under the ADA.

(The Rehabilitation Act is a precursor to the ADA in protecting people with disabilities, but it applies only to those businesses that receive federal funding.)

The case in question was Fleming v. Yuma Regional Medical Center. The plaintiff, an anesthesiologist, claimed he was denied a contract because he was suffering from Sickle Cell Anemia. The hospital countered that he couldn’t sue because he was not an employee, but an independent contractor.

On Nov. 19, 2009, the Ninth Circuit Court ruled in the plaintiff’s favor and rejected the argument that the ADA restricts the scope of the Rehabilitation Act.

The Tenth Circuit Court has also interpreted matters in the same way, so in those two jurisdictions at least, the Rehabilitation Act does indeed protect independent contractors as well as employees. Since the Sixth and Eighth Circuit Courts have ruled exactly the opposite–that the ADA does restrict lawsuits under the Rehabilitation Act to employees–the logical place for the issue to be resolved is the Supreme Court, but it’s not on the docket yet.

Meanwhile, to keep up with the ADA itself, get a copy of Personnel Concepts’ ADA Amendments Act Compliance Kit and learn of how the ADA now covers virtually every employee.


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.
GoTo top Top

One in Four Believes a Co-Worker Capable of Violence

In the wake of the workplace murder of Yale student Annie Le and other tales of co-worker-initiated mass violence such as that at Ft. Hood, one in every four Americans believes a co-worker he or she knows is capable of violence, according to a new Rasmussen poll.

According to the latest Rasmussen Reports national telephone survey, 26 percent of employed adults said they seriously thought that a co-worker was capable of violent acts, while 43 percent of government workers felt a fellow employee was capable of mass violence.

More pertinently from an employer’s perspective, 36 percent said their places of work lacked adequate procedures to help prevent workplace violence.

Unsure how to develop policies and procedures to thwart workplace violence? Get a copy of Personnel Concepts’ Workplace Violence Prevention Kit and start implementing your plan today.


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.
GoTo top Top