Employment Law Lookout

Railroad Ordered to Pay $225,000 in Whistleblower Action where Employee Allegedly Lied About Prior Injuries

Posted in OSHA Compliance, Whistleblower

By: Ada W. Dolph and Craig B. Simonsen

A railroad’s decision to terminate an apprentice electrician whose OSHA injury report revealed he had not been truthful in his employment record about other prior workplace injuries was unlawful retaliation under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA), OSHA has ordered.  The railroad was ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,000 in back wages and interest, and reasonable attorney’s fees.

After the employee was seriously injured at work, the injury was reported to OSHA and included information regarding prior unrelated workplace injuries.  The company investigated the injury, reviewed the information reported to OSHA, and concluded that the employee had been dishonest with the company about his prior workplace injury record.  As a result, the company terminated the employee’s employment.  The employee filed a whistleblower complaint under FRSA asserting that his employment had been terminated in retaliation for reporting workplace injuries.  OSHA agreed, leveling this significant damages award against the company.

This decision demonstrates how broadly OSHA will interpret employee whistleblower protections.  Employers should tread lightly when taking disciplinary action that is the fruit of any aspect of employee activity that is permitted under the whistleblower provisions of FRSA or any of the 21 other statutes that OSHA is charged with enforcing.

Ada Dolph is a Partner and Craig Simonsen is a Senior Litigation Paralegal, in Seyfarth Shaw LLP’s Chicago office.  If you would like further information on this topic, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, Ada Dolph at adolph@seyfarth.com, or Craig Simonsen at csimonsen@seyfarth.com.

U.S. Supreme Court Passes on Review of Illinois Employee Classification Act, Leaving Statute Intact as “Constructed”

Posted in Alternative Work Forces & Independent Contractors

By: Giselle Donado, Kevin A. Fritz, and Jason J. Englund

An Illinois state law directed at preventing the misclassification of construction employees as independent contractors remains intact after the US Supreme Court declined to consider a roofing company’s challenge to the 2008 law.

Illinois Employee Classification Act

The Illinois Employee Classification Act imposes substantial penalties for the misclassification of employees as independent contractors with respect to construction projects performed within the State of Illinois.  Through these penalties, the Act creates a presumption that any person performing services for a covered construction company is an employee of that company—unless the company can affirmatively prove that the individual is an independent contractor.

Jack’s Roofing

In 2010, the Illinois Department of Labor (“DOL”) issued a preliminary determination that Jack’s Roofing had misclassified its workers as independent contractors in violation of the new statute, and the DOL slapped the company with a “potential penalty” of nearly $1.7 million.  Plaintiffs responded by filing an action against DOL seeking injunctive relief and a declaratory judgment that the statute was unconstitutional. Plaintiffs argued that the Act was unconstitutionally vague and violated the Equal Protection Clause of the Illinois and US Constitutions because no other industry faced the same standards when seeking to hire independent contractors.  Plaintiffs also sought a declaration that the Act violated the Special Legislation Clause of the Illinois Constitution, which the plaintiffs argued prohibits imposing more stringent employment standards for the construction industry than other industries.

Plaintiff’s arguments came unshingled at trial in state court, appellate court, and the Illinois Supreme Court recently completed the leveling.  With the latest Illinois court ruling, the state’s highest court determined that plaintiff’s due process arguments were moot and that plaintiffs failed to brief sufficiently the other constitutional arguments.  Now with US Supreme Court declining to hear the case, plaintiff’s case is grounded for good.  More importantly, this inaction by the nation’s highest court ensures that the Employee Classification Act will likely remain the law for some time, leaving in place the powerful tools granted to the Illinois Department of Labor.

Implications

Violations of the Employee Classification Act invoke fines in increasing amounts per violation, starting at $500 per violation.  The Act also prohibits retaliation and creates a private right of action under which an employee may recover wages, benefits, attorneys’ fees, and costs.  As such, it is important that employers in the construction and related industries pay special attention to the provisions of this law.  While a $500 per fine may appear to be manageable at first blush, each day a misclassified worker performs services is deemed a separate violation.  Exposure for penalties can add up quickly across the company’s workforce, even with a low fine per worker.  To remain on sure footing, Illinois construction employers must be diligent about filing complete and accurate reports to avoid being subjected to harsh penalties.

Employers need to be very careful when classifying workers as independent contractors.  Since the Employee Classification Act presumptively assumes construction workers and the like are employees (not independent contractors), proper classification is vital.

The DOL Joins The Showdown On Paid Sick Leave Laws

Posted in Workplace Policies and Processes

By: Johanna T. Wise and Andrew J. Masak

Welcome to the Wild West of paid sick leave laws in the United States.  Considering the nearly 41 million workers without access to paid leave, and with no federal coordination in sight, many states and localities have taken it upon themselves to enact their own legislation.  This has created a melee of sick leave laws that employers must now track.

As summarized by our fellow bloggers, the early adopters of paid sick leave laws have created an array of legislation with different requirements for, among other things: coverage, accrual, and usage.  Navigating these laws can cause headaches for employers and make it imperative that employers with existing operations in these localities review their sick leave policies closely to ensure compliance.  Moreover, employers considering opening up new facilities nationwide must be cognizant of this ever-changing, ever-more complicated area of the law.

In 2014 alone, four paid sick leave laws have newly become effective: Jersey City, NJ; New York City, NY; Newark, NJ; and Portland, OR.  What’s more, paid sick leave campaigns or legislation exist in Alaska, Arizona, California (for both the State and in the City of San Diego), Florida, Hawaii, Illinois (for both the State and in the City of Chicago), Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Oakland, Oregon, Pennsylvania, Philadelphia, South Carolina, Vermont, Washington (for both the State and the City of Tacoma), and Wisconsin.  As localities are increasingly kicking aside the tumbleweed and brandishing their weapons in this wild workplace environment, they are creating a veritable maze of rules and regulations for employers with nationwide operations.

In this untamed landscape of varying and increasing state and local laws, the Department of Labor has also joined the showdown.  On September 24, 2014, the U.S. Department of Labor’s Women’s Bureau and Employment Training Administration announced that it had awarded $500,000 to fund feasibility studies on paid leave laws in the District of Columbia, Massachusetts, Montana, and Rhode Island.  Specifically, according to the DOL’s news release:

The District of Columbia Department of Employment Services received $96,281 “to produce an economic impact analysis, financing and benefit models, and a cost-benefit study to assess the feasibility of enacting a paid family leave program;”

The Massachusetts Department of Labor Standards received $117,651 “to conduct research and develop a microsimulation model that will help the state estimate eligibility, take-up and benefit costs of a variety of proposed paid family and medical leave programs;”

The Montana Department of Labor and Industry received $124,651 “to research the feasibility and economic impact of creating a state paid family leave program — including providing financing, eligibility and benefit recommendations — and to conduct public opinion research for communications and implementation purposes;” and

The Rhode Island Department of Labor and Training received $161,417 “to determine the effectiveness of the Rhode Island Temporary Caregiver Insurance Program and its benefits for Rhode Islanders, as well as the public’s awareness of the program.”

In response to this ever changing landscape of paid sick leave laws, employers are wise to review their current policies and consider how they will record and monitor employees’ hours for purposes of determining accruals and eligibility.  While the list of regulations employers face continues to increase and business considerations mount, one thing is certain: out on the range in the Wild West of paid sick leave laws, it’s still a very uncertain world.

For additional information on paid sick leave laws, contact the authors, any member of Seyfarth’s Absence Management and Accommodation Team, or your Seyfarth attorney.

Ebola and Employer Liability Issues

Posted in Environmental, Safety, & Toxic Tort

By: Mark A. Lies IIKerry M. Mohan, and Brent I. Clark

As reported in the news recently, the Ebola virus is a significant health hazard. There are now reported cases of the virus in at least two locations in the United States. Certain industries, such as healthcare, emergency responders and transportation, particularly the airline industry, are already identified as areas where there is a higher probability of infection. As of yet, there is no reported case in a workplace in the continental United States. As recently blogged about by our colleagues in our Environmental, Safety and Toxic Torts Practice Group, click here for a primer on the disease for a discussion of the Federal employment laws that may be impacted. The article also provides recommendations on how to preplan and develop a response plan. Should you have additional questions, please contact the authors Mark Lies or Kerry Mohan, any one of the attorneys in our Environmental, Safety and Toxic Torts Practice Group, or your Seyfarth attorney.

CVS Prevails in First Round on TKO

Posted in EEOC

By Condon McGlothlen and Holger Besch

The federal district court in Chicago last week issued its much-awaited opinion in EEOC v. CVS Pharmacy, Inc., No. 1-14-cv-00863 (N.D. Ill. Oct. 7, 2014). The decision was anticlimactic. Given the issues at stake, however, as well as some pro-employer signals from the court, every employer that provides severance in exchange for a release should take note. At bottom, the decision means EEOC can and will continue attacking heretofore routine separation agreements.

What’s At Issue

As has been widely reported, EEOC argues in the case that CVS’s standard separation agreement not only is unenforceable, but also violates Title VII’s anti-retaliation mandate. Specifically, EEOC claims: (i) the agreement’s general release language chills individuals from filing charges with the agency (and is not saved by language protecting the “right to participate in a proceeding with any federal … agency enforcing discrimination laws” and to “cooperat[e] with any such agency in its investigation”), and (ii) the agreement’s non-disclosure and non-disparagement language further prevents individuals from filing charges and otherwise exercising Title VII rights.

Employer advocates view EEOC’s position as extreme, to say the least. Virtually every separation agreement contains something EEOC might find objectionable. CVS’s agreement may have contained more such passages than some, but it’s hardly extraordinary. Thus, many employers’ agreements may be in jeopardy unless and until: (i) enough courts reject EEOC’s attenuated theories, such that the agency decides against further pursuing them in litigation; (ii) EEOC issues reasonably clear guidance in this space, so employers know what EEOC views as acceptable; and/or (iii) the balance of viewpoints represented on the 5-person Commission shifts in employers’ favor.

Court Rules Against EEOC For Failure To Conciliate

Without addressing the substantive “retaliation” questions under Title VII, the court (Judge Darrah) instead granted summary judgment for CVS on the ground that EEOC had failed to attempt conciliation before filing suit. The agency admitted it had engaged in no conciliation procedure whatsoever before the lawsuit. It argued conciliation is not required before a pattern or practice suit under Section 707(a) of Title VII. Because this power had previously been vested in the Attorney General, who was not required to bring a charge or engage in conciliation, and because that authority was later transferred to EEOC, the agency argued it too was exempt from Title VII’s usual conciliation requirements. Judge Darrah, however, read Section 707(a) as authorizing EEOC to bring charges alleging a pattern or practice of discrimination, and not as creating a separate Title VII cause of action (more specifically, one altogether exempt from administrative prerequisites to suit).

In reaching this conclusion, the CVS court relied in part on Mach Mining, LLC v. EEOC, 738 F.3d 171 (7th Cir. 2013). That case is pending before the Supreme Court. There, the Seventh Circuit considered EEOC’s duty to conciliate in good faith before suing an employer. The appeals court held that EEOC’s failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit, provided EEOC pleads and can prove some attempted conciliation. Because EEOC refused to make even this minimal showing in the CVS case, Judge Darrah gave it the judicial boot.

Agency Taken To Task On the Merits

Beneath what some view as a technical ruling, the district court derided EEOC’s case on merits. Like many lawyers, Judge Darrah put the good stuff in the footnotes. He first explained that any Title VII retaliation claim, including one filed by EEOC under Section 707(a) pattern or practice theory, must involve “some retaliatory or discriminatory act.” By this, Judge Darrah clearly signaled that CVS’s standard form separation agreement and practice lack the requisite retaliatory act. He next noted the caveat to CVS’s general release language – the passage protecting the individual’s right to participate in agency proceedings. That language, Darrah reasoned, plainly encompasses the right to file charges – the right with which CVS purportedly interfered.

Regrettably for employers, these passages are dicta – points unnecessary to the court’s holding, and thus not binding (or even very persuasive) authority. Still, they are a start: the first judicial retort to EEOC’s efforts to unsettle the repose for which corporate America every day pays millions of dollars in severance.

Looking Ahead

Next up: EEOC’s lawsuit in Denver against CollegeAmerica, a company that likewise insisted on non-disparagement as a condition of paying severance. CollegeAmerica further required that employees represent they have no pending claims (including administrative actions) against it. That seems only fair, if it was to pay severance to avoid the cost of defending against such claims. To EEOC, however, that provision too inevitably “chills” employees from filing charges. (Ironically, the charging party in CollegeAmerica filed three charges after she had signed the putatively chilling agreement.) That didn’t keep EEOC from holding her out as a victim of retaliation. Which means EEOC will likely find more such victims, and thus file more such suits.

Hard to say whether EEOC will appeal against CVS. They might, just in case the Supreme Court upholds the Seventh Circuit’s Mach Mining decision, and in so doing provides some support for EEOC’s “no need to conciliate” stance in CVS. But as Judge Darrah recognized, the latter does not follow from Mach Mining. One thing is certain: we haven’t heard the last from EEOC as regards separation agreements; while the agency is all for employees receiving the “quid” upon terminating from employment, it doesn’t much like the [pro] “quo” most employers want in return.

For more, contact the authors or your Seyfarth attorney.

 

What Does The Employer Know, And When Does It Know It? SCOTUS Grants Cert In EEOC V. Abercrombie Religious Discrimination Suit

Posted in EEOC

By Dawn Reddy Solowey  and Lynn Kappelman

On October 2, 2014, the U.S. Supreme Court agreed to weigh in on the long-running litigation between EEOC and Abercrombie & Fitch over the retailer’s decision not to hire a Muslim teenager who interviewed for a position in a headscarf that violated its “Look” policy.

The Court’s much-anticipated decision may clarify when an employer is on notice that an applicant or employee may need a religious accommodation from a workplace policy under Title VII.

The Facts

Samantha Elauf, who self-identifies as Muslim, applied for a “model” (salesperson) position in an Abercrombie store.  She alleges that she had long worn a hijab—a traditional Muslim headscarf—for religious reasons.  The hijab conflicted with Abercrombie’s “Look Policy,” which required salespeople to wear “classic East Coast collegiate style of clothing” and forbade head-coverings.

At the job interview, Ms. Elauf wore the headscarf, but did not say anything about it or her religion, or request any accommodation.  Her interviewer testified that she assumed that Ms. Elauf was Muslim and wore the head-covering for religious reasons. Evidence suggested that the headscarf influenced Ms. Elauf’s interview scores, and the decision not to hire her.

The Lower Court Rulings

The district court granted summary judgment to the EEOC on its claim for failure to accommodate Ms. Elauf’s religion.  In 2013, the Tenth Circuit reversed (see our previous post), and granted Abercrombie summary judgment.

The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that her religious practice conflicts with a job requirement. Since it was undisputed that Ms. Elauf had not notified Abercrombie that her religion required that she wear a head scarf and that she would need a religious accommodation for this observance, the EEOC’s religious accommodation claim failed as a matter of law.

The Court reasoned that the burden of notice belongs with the applicant or employee, because religion is an inherently personal and individual matter. The applicant or employee is uniquely qualified to know whether a practice is religiously motivated and an accommodation is necessary. Moreover, Abercrombie had no actual knowledge of the conflict.

The Court rejected the EEOC’s argument that “something less than an employer’s particularized, actual knowledge would suffice.”  The Court explained that the employer should not be held liable for failure to have “guessed, surmised, or figured out from the surrounding circumstances” that the practice was religiously-based and required accommodation. The Court pointedly noted that the EEOC itself cautions employers against asking about religion in the hiring process, or making assumptions about religious practices based on stereotypes.

What Can We Expect from the Supreme Court?

The Court is poised to decide what is legally sufficient to put an employer on notice that a religious practice may conflict with a job requirement, and therefore trigger the employer’s duty to engage in an interactive process to explore accommodations.

The Court could decide to affirm the Tenth Circuit’s ruling that the duty to inform the employer rests with the employee.  Or the Court could hold that at least actual notice of the conflict (from any source) is required before an employer can be liable for failure to accommodate.  Or the Court could agree with the EEOC that even something less than actual notice will suffice.

The Court may look to disability law regarding when an employer is on notice that an accommodation is required.  In opposing the cert. petition, Abercrombie argued that a requirement that the employee request a religious accommodation would be consistent with authority in the ADA context that an employer’s obligation to accommodate does not arise until the employee makes an adequate request.  But at least some courts have held that an employer may not bury its head in the sand when it is clear that an employee requires an accommodation for his disability to perform her job, and have required employers to engage in the interactive process with employees in that situation.  If the Court reasons that the same holds true with religious accommodations, it could hold that Abercrombie was on notice that they needed to engage in the interactive process with Ms. Elauf.

What Does The Case Mean for Employers?

As we have reported before, the EEOC has doubled down on its view that something less than actual notice is required, including in its 2014 guidance on religious attire and grooming.  But  this position leaves the employer in a quandary, as the employer could be penalized for failing to act on mere assumptions regarding an applicant or employee’s religious practice, even as it is advised to avoid asking about religion or engaging in religious stereotyping.

If the simple act of an employee wearing something that can be (but is not necessarily) associated with a particular religion is enough to put the employer on notice, then many forms of attire could arguably trigger notice, from a yarmulke, to a cross necklace, to a tattoo.  And the implications may go beyond mere attire.  For example, should the employer assume from religious attire, like a Star of David necklace, that the applicant may need a certain day off to observe the Sabbath?

Clarification from the Court will provide employers welcome guidance.  Until then, employers should generally continue to avoid asking applicants about religion, or making assumptions based on stereotypes.  At the same time, an employer who has reason to believe that accommodation may be necessary—even if applicant has not asked—should seek guidance from counsel. Employers should also make sure to follow state or local religious discrimination laws, which can vary from federal.

For additional information on religious accommodations, please contact Ms. Solowey or Ms. Kappelman in Seyfarth Shaw LLP’s Boston office, or your Seyfarth attorney.

EEOC Pushes Its Strategic Enforcement Plan And Advocates For Transgender Workplace Protections Under Title VII

Posted in EEOC

By Laura J. Maechtlen

No federal statute explicitly prohibits employment discrimination based on gender identity or expression. Nevertheless, in recent years, the EEOC has advocated — including as part of its strategic plan — that it would pursue protections for transgender workers under Title VII’s prohibition against “sex” discrimination and harassment. Indeed, on April 20, 2012, the agency issued a landmark administrative ruling titled Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012) in which it held that transgender individuals may state a claim for sex discrimination under Title VII. Read our prior analysis of the Macy decision here.

Following Macy, on September 25, 2014, the EEOC filed two separate lawsuits—EEOC v. Lakeland Eye Clinic, P.A. (Middle District of Florida, Tampa Division) and EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (Eastern District of Michigan, Southern Division) — on behalf of transgender workers. The crux of the EEOC’s theory is that Title VII protects transgender workers based on “sex.”

Facts And Claims Alleged

In EEOC v. Lakeland Eye Clinic P.A., the EEOC asserts that the employer fired its director of hearing services, Brandi M. Branson, after she began wearing feminine clothing to work and informed the clinic she was transitioning from male to female. Managers and employees allegedly made derogatory comments about Branson’s appearance, and Branson was thereafter deprived of her client base by the employer. Branson was terminated, and the EEOC alleges that, two months after Branson was terminated, the clinic hired a male worker in the same position who conformed to traditional gender norms.

In R.G. & G.R. Harris Funeral Homes, the EEOC alleges that a Detroit-based funeral home illegally fired a funeral director and embalmer named Aimee Stephens, weeks after Stephens gave the funeral home a letter saying she was undergoing a gender transition from male to female. She was allegedly terminated, and told by the owner of the employer that what she was “proposing to do” was “unacceptable.”

In both cases, the EEOC alleges various theories of “sex” discrimination on behalf of the claimants. The EEOC alleges that the decision to terminate each of these employees was motivated by “sex-based” considerations because the employee is transgender, because of the employee’s transition from male to female, and/or because the employees did not confirm to the employers sex- or gender-based preferences, expectations or stereotypes.

Implications For Employers

The theories of liability articulated in these lawsuits clearly follow the EEOC’s prior ruling in Macy, in which the EEOC found that discrimination against a transgender worker was — per se — sex discrimination. See Macy at *6. The EEOC also uses as a basis for liability the decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989), in which the U.S. Supreme Court held that Title VII bars discrimination based on gender stereotypes, in other words, failing to act and appear according to expectations defined by gender — a form of sex discrimination that has since been described as “sex stereotyping,” and one alternative way of proving sex discrimination.  The EEOC has made clear that, while gender identity and/or expression are not independent classifications for protection under federal law, the agency will attempt to establish a case of sex discrimination through a variety of different formulations.

In order to avoid potential pitfalls in this emerging area of law, employers must be mindful of issues related to gender identity and/or expression that might arise during interviewing, hiring, discipline, promotion and termination decisions.  Employers should be particularly vigilant when an employee identifies as transgender, or announces a plan to undergo a gender transition. Moreover, the theories articulated in these cases are not just limited to transgender employees—many forms of “sex stereotyping” may give rise to actionable claims, not just discrimination or harassment against individuals who identify as transgender. Employers must also be aware that transgender individuals may be affirmatively protected under state or local laws (see our analysis of a recent California case here), and that any allegations concerning transgender discrimination, gender stereotyping or gender identity, require the same analysis, investigation and response as a traditional sex discrimination complaint. Finally, employers should consider whether to implement gender transition guidelines for human resources and/or management that define a process through which employees and management approach an employee gender transition in the workplace.

Readers can also find this post on our EEOC Countdown blog here.

Happy New Year! OSHA’s Revised Recordkeeping Rule — Major Implications on Employers (Part II)

Posted in Environmental, Safety, & Toxic Tort, OSHA Compliance

By: Mark A. Lies II and Kerry M. Mohan

On Tuesday we wrote about OSHA’s September 11, 2014, announcement of its Final Rules that revised current recordkeeping standards.  Today, we provide you more information regarding what the changes to those rules will mean.

Increased Reporting Of Injuries And Incidents Will Lead To Increased OSHA Inspections

Under the current rule, all employers are required to report to OSHA “[w]ithin eight (8) hours of the death of an employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” 29 C.F.R. § 1904.39(a). This requirement applies to all employers, regardless if they have 10 or fewer employees and regardless of if they are exempt from maintaining recordkeeping logs.

Under the new standard, all employers are required to report to OSHA:

  • Within eight (8) hours after the death of any employee as a result of a work-related incident;” and
  • Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, as a result of a work-related incident.”

20 C.F.R. § 1904.39(a) as amended.

OSHA’s new reporting rule raises several questions as to what it even means. For instance, what constitutes an amputation? Under the new rule, an amputation does not require bone loss. Thus, does the cutting-off of the very tip of a finger, no matter how small, constitute an amputation? Also, what constitutes the loss of an eye? Does it require an immediate incident resulting in the loss of an eye? The fact that these questions exist means that OSHA may have a different interpretation of the rule than the employer, which could result in a citation.

Moreover, the new standard’s implications are significant. As you may expect, the reporting of a death or serious injury often leads to an OSHA inspection, which brings its own set of issues. Thus, by requiring employers to now report more injuries and illnesses, the number of OSHA inspections, and citations issued as a result, will certainly increase.

Multi-Employer Worksites

As this rule unfolds, it will have implications relating to OSHA’s “multi-employer” worksite doctrine which is applicable when there are multiple employers engaged in performing work at the same worksite.

Section 5(a) of the Occupational Safety and Health Act broadly requires employers to furnish each of its employees a workplace free from recognized hazards and to comply with all occupational safety and health standards developed by OSHA. Thus, the Act creates two types of obligations: 1) a “general duty” obligation running only to the employer’s own employees; and 2) an obligation to obey all OSHA standards with respect to all employees, regardless of their employer.

This second obligation formed the basis for OSHA’s “multi-employer worksite policy,” under which the Agency decided it had the authority to issue citations not only to employers who exposed their own employees to hazardous conditions, but also to employers who created a hazardous condition that endangered employees, whether its own or those of another employer.  This policy gave OSHA the ability to issue citations to multiple employers even for violations that did not directly affect the employer’s own employees. This policy had particular import in the construction industry, with many different employers having employees at a site at any given time.

Since the early 1980s, OSHA has continuously expanded the scope of its multi-employer worksite policy. Under OSHA’s current enforcement policy, compliance officers are instructed to issue citations to any employer who:

1)      exposed its own employees to a hazardous condition;

2)      created a hazardous condition that endangered any employer’s employees;

3)      was responsible for correcting a hazardous condition even if its own employees were not exposed to the hazard; or

4)      had the ability to control to prevent or abate a hazardous condition through the exercise of reasonable supervisory authority.

This fourth category, the “controlling employer,” has historically caused the most consternation among employers as well as courts.  The new OSHA enforcement policy regarding reporting of injuries or illness and monitoring the OSHA 300 Log and related documents will raise numerous issues, for example:

  • Does the controlling employer at the worksite have OSHA liability if another employer, such as a subcontractor or a temporary staffing service, at the worksite fails to report an injury or illness involving the subcontractor’s or temporary staffing service’s employee to OSHA within the required time period?
  • What obligation does the controlling employer have to inquire with other employers to determine whether a subcontractor or temporary staffing service had a reportable or recordable injury or illness and whether the subcontractor or temporary staffing service complied with the rule?
  • Who is responsible for maintaining the OSHA 300 Log at the worksite since OSHA has specific rules regarding which employer(s) is/are required to maintain the Log if there are multiple employers at the worksite?

Inspection Preparation

As many employers have learned who have been inspected by OSHA, there are respective rights of the employer, employees and OSHA during an OSHA inspection.  Unfortunately, most employers are unaware of these respective rights, as well as their employees, and, therefore, may waive important rights regarding the scope of the inspection, what documents the agency is and is not entitled to and how to respond to requests for employee interviews. Since there will be many more inspections generated, it is critical in the next several months that employers train their supervisors and make employees aware of these rights.

Training Of The OSHA Record Keeper

Because many thousands of new employers will now be responsible for maintaining the OSHA 300 Log, the training process must begin now so that the record-keepers can begin to properly document recordable injuries and illnesses on the Log, as of January 1, 2015. The record-keeper will need to learn the various categories of recordable injuries and illnesses, how to evaluate medical records to determine whether an incident is recordable and then become aware of how to insert the data into the correct categories in the Log. The learning curve will be steep since the Log must be completed for each recordable incident within seven (7) calendar days of the employer becoming aware that there has been a recordable injury or illness.

Recommendations

In order to be prepared to meet these new compliance obligations, employers should consider the following:

  • determine whether the employer is now subject to the requirement to maintain the OSHA 300 Log, and if so, designate and train an employee who will be competent to perform this responsibility
  • conduct training for its record-keeper or other responsible employee regarding the new requirements to report the expanded categories of reportable severe injuries and illnesses within twenty-four (24) hours to OSHA
  • because there will be many more OSHA inspections due to the new reportable categories of severe injuries and illnesses, conduct training on the various rights and responsibilities of employers, employees and OSHA during an OSHA inspection so that these rights can be properly exercised to limit the scope of potential employer liability.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.

Happy New Year! OSHA’s Revised Recordkeeping Rule — Major Implications on Employers (Part I)

Posted in Environmental, Safety, & Toxic Tort, OSHA Compliance

By: Mark A. Lies II and Kerry M. Mohan

As many employers know all too well, the Occupational Safety and Health Administration (“OSHA”) requires them to record work-related injuries and illnesses and to maintain the OSHA 300 Log for five years. Moreover, OSHA requires all employers to report to OSHA certain serious injuries within a short time period. On September 11, 2014, OSHA announced its Final Rule revising the current recordkeeping standard, which will significantly expand the recordkeeping rule’s reach to hundreds of thousands of new employers and place further burdens on employers to report additional workplace injuries and illnesses. Since these new rules become effective on January 1, 2015, employers are being encouraged, but have little time in reality, to modify their practices and prepare for the coming wave of enforcement.

OSHA’s Recordkeeping Regulations

Under OSHA’s recordkeeping regulations, 29 C.F.R. 1904, certain employers with more than 10 employees must record work-related injuries and maintain written records for five (5) years. Those records include the 300 Log, the 301 form, and the 300A annual summary. Though it may sound simple, recordkeeping is not an easy task, as it involves numerous issues including  work-relatedness, the nature and scope of an injury or illness, and the counting of employee days off from work or restricted duty, all of which many times involve analysis of incomplete or conflicting evidence. For instance, an employer may disagree with an employee’s claim that his or her injury or illness is work-related. In such circumstances, the employer must evaluate the employee’s claim to determine whether the injury or illness should be recorded on the OSHA 300 Log or should be found to be non-work-related. If the employer finds that the injury is non-work-related, the employer will have to maintain documentation to support its determination in case OSHA were to challenge that decision.

Thousands Of New Employers Are Now Subject To OSHA’s Recordkeeping Requirement

Under OSHA’s current rule, employers with 10 or fewer employees are exempt from maintaining OSHA 300, 301, and 300A records, which track work-related injuries. The current rule also exempts thousands of employers based on their Standard Industrial Classification (“SIC”) codes. Under the new rule, the list of exempted employers will be based on North American Industry Classification System (“NAICS”) codes. As a result, many employers who were once exempted from OSHA’s recordkeeping requirements will now have to begin maintaining OSHA 300, 301, and 300A records. Some of the industries now covered by the recordkeeping rules include:

  • “Bakeries and tortilla manufacturing;”
  • “Automobile dealers;”
  • “Automotive parts, accessories and tire stores;”
  • “Lessors of real estate;”
  • “Facilities support services;”
  • “Beer, wine, and liquor stores;”
  • “Commercial and industrial machinery and equipment rental and leasing;”
  • “Direct selling establishments;”
  • “Performing arts companies;”
  • “Museums , historical sites, and similar institutions;”
  • “Amusement and recreation industries; and
  • “Other personal services.”

The first question that comes to mind when seeing this list of industries now covered under the recordkeeping rule is, “What is OSHA even talking about?” Thus, it is important that employers learn what their NAICS code is to determine if they are now covered by the recordkeeping rule. If so, the employer will then have to count its number of employees to see if it has 10 or fewer. There is information available from OSHA at www.osha.gov/recordkeeping2014 on how to conduct this assessment and also identify the employers now subject to the rule.

In short, OSHA’s new rule will encompass hundreds of thousands of employers who never had to keep these records. Moreover, because of the January 1, 2015 implementation date, these employers must take prompt action to ensure that they are prepared to record injuries and illnesses in the future.

LATER THIS WEEK — Information on how these changes impact employers, their reporting requirements and what we can expect from OSHA in the coming new year.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.