Mill Officials Indicted Over Workers’ Deaths

Workplace safety violations can at times rise to the level of criminality.

A federal grand jury has indicted the operator and six management officials of a Cambria corn mill – where a May 31, 2017, explosion killed five workers and injured 15 others – on nine criminal counts, including two counts related to willful violations of federal workplace safety standards for grain handling.

Handed down by a grand jury in the U.S. District Court for the Western District of Wisconsin in Madison on May 11, 2022, the indictment of Didion Milling Inc. and its current and former managers includes counts of document falsification in contemplation of a U.S. Department of Labor, Occupational Safety and Health Administration investigation and obstructing the federal OSHA investigation. The indictment also charges the company and the six officials falsified entries in a cleaning logbook, which involved matters under the jurisdiction of OSHA.

The indictment alleges that Didion Milling willfully violated two federal safety standards in the Occupational Safety and Health Act — by failing to develop and implement a written program to effectively prevent and remove combustible grain dust accumulations, and by not installing venting or suppression on a dust filter collector to prevent an explosion – thereby, causing the deaths of five employees due to the combustible dust explosion on May 31, 2017.

The grand jury indictment also includes the following allegations:

• Didion Milling and four employees – vice president of operations, Derrick Clark; former food safety superintendent, Shawn Mesner; former shift superintendent, Anthony Hess; and former shift superintendent, Joel Niemeyer – conspired to commit fraud by agreeing to take deceptive measures to conceal the failure to adhere to food safety procedures at the mill.
• Didion Milling, Clark, Mesner, Hess and Niemeyer – along with former environmental coordinators, James Lenz and Joseph Winch – conspired to commit federal offenses to conceal violations and unsafe conditions from auditors and government agencies.
• Hess, Clark and Didion obstructed justice by providing false and misleading testimony after the explosion to OSHA about their knowledge of combustible dust hazards at the mill.

Former Didion Milling shift superintendents Michael Bright and Nicholas Booker pleaded guilty previously to making false entries in Didion Milling’s cleaning logbook and false entries in the baghouse log, which involved matters within the jurisdiction of OSHA and EPA, respectively.

Based in Sun Prairie, Didion Milling Inc. has been in operation since 1972. The company operates a corn milling and biofuels facility in Cambria and production facilities in Markesan and Johnson Creek.

An indictment is merely an allegation and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

Employer Fined $53K Over Employee’s Death

Another safety failure–and another life cut short.

A federal workplace safety investigation found an employer’s failure to follow federal safety standards contributed to a 45-year-old worker suffering fatal injuries after a forklift struck her as she walked across an Athens lumber shipping yard on Nov. 15, 2021.

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration cited Sunbelt Forest Products LLC – operating as Sunbelt Forest Products Corp. – for exposing workers to struck-by hazards by allowing employees to walk where forklift drivers could not see them, and for failing to distinguish and mark shipping department travel aisles for trucks, forklifts and pedestrians.

The company also failed to require forklift drivers to keep a clear view of the driving path and did not remove damaged forklifts from service. OSHA has proposed $53,866 in penalties.

“A forklift typically weighs between 4,000 to 9,000 pounds and poses significant risk of severe injury or death to workers who may be struck-by this equipment. Employers must take precautions in workplaces that use powered industrial vehicles to prevent devastating incidents and the loss of someone’s life,” said OSHA Area Office Director Ramona Morris in Birmingham, Alabama.

Sunbelt Forest Products LLC is an Athens-based manufacturer of treated lumber. 

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA, or contest the findings before the independent Occupational Safety and Health Review Commission.

Visit OSHA’s website for information on developing a workplace safety and health program. Employers can also contact the agency for information about OSHA’s compliance assistance resources and for free help on complying with OSHA standards.

EEOC: Hospital Violated ADA in Demanding Second Medical Release From Leave User

Too-strict application of a work rule landed this employer in court opposite the government.

Grady Memorial Hospital Corporation, a public hospital in Atlanta, violated federal law by failing to accommodate its employee’s disability and then firing her because of her disability, the U.S. Equal Employment Oppor­tunity Commission (EEOC) charged in a recently filed lawsuit.

According to the EEOC’s suit, the employee requested approximately five weeks of leave from work due to a medical condition. The EEOC alleges that the employee attempted to return from leave as scheduled, however Grady refused to accept her doctor’s release, instead requiring her to obtain another release from her physician. Grady then discharged her, allegedly for violating a work rule, before she could return. The EEOC contends that this discharge was a pretext for disability discrimination.

Such conduct violates the Americans with Disabilities Act (ADA), which requires that emp­loyers provide reasonable accommodations to employees with disabilities and prohibits discharging an employee because of a disability. The EEOC filed suit (Civil Action No. 1:22-CV-2059 TCB JSA) in U.S. District Court for the Northern District of Georgia, Atlanta Division, after first attempting to reach a pre-litigation settlement via its conciliation pro­cess. The EEOC is seeking back pay, compensatory, and punitive damages for the employee, as well as injunctive relief to prevent future discrimina­tion.

“Grady claims to have strictly applied a work rule instead of processing its employee’s request for leave as an accommodation under the ADA,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “Had Grady simply accommodated its employee as the law requires. she would not have been fired and this situation would not have arisen.”

Darrell Graham, district director of the Atlanta office, said, “When an employee needs leave related to a medical condition, it often implicates the ADA. Grady was required to consider its obligations under the ADA when applying its work policies but failed to do so in this case. When this happens, the EEOC can step in to protect employees’ rights.”

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.

Safety Fines Pile Up Against Illinois Contractor

Talk about your deadbeats–safety violators and unpaid fines.

A Roselle contractor’s history of violating federal safety standards and ignoring safety citations and penalties – and a willingness to expose its workers to serious injuries or worse – continues, as federal inspectors found during their Nov. 8, 2021, investigation at a Park Ridge residential construction site.  

Currently, Emerald Inc. owes the U.S. Department of Labor’s Occupational Safety and Health Administration more than $378,561 in penalties from six previous inspections dating back to 2018. In addition, the company  has not responded to citations issued by OSHA in 2018, 2020 and 2021. The unpaid penalties have been referred for debt collection.

“Emerald Inc. continues to put its workers at risk of the construction industry’s most cited safety hazard – a fall from heights – which can leave workers with serious debilitating injuries or worse,” explained OSHA Chicago North Area Director Angeline Loftus in Des Plaines, Illinois. “The company’s disregard of federal safety standards and willingness to gamble with its workers’ lives is disturbing. OSHA will continue to cite the company for its violations and hold them legally responsible for the dangerous risks they are taking.”

In the agency’s most recent investigation, an OSHA inspector found Emerald exposing a foreman and a roofer to deadly fall hazards as they worked at heights of up to 22 feet above the ground with inadequate fall protection. The investigation determined Emerald had failed to equip workers with adequate fall protection equipment and did not train workers on the proper use of powered industrial vehicles, ensure the use of head and eye protection and allow workers to use ladders improperly.

As a result of the Park Ridge investigation, OSHA issued Emerald Inc. one willful and five repeat citations, and proposed additional penalties of $263,226.

In late 2021, the Bureau of Labor Statistics reported that 351 of the 1,008 construction workers who died on the job, were deaths related to falls from elevation.

OSHA’s stop falls website offers safety information and video presentations in English and Spanish to teach workers about hazards and proper safety procedures. Learn more about OSHA’s annual National Safety Stand-Down to Prevent Falls.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with each of OSHA’s area directors, or contest the findings before the independent Occupational Safety and Health Review Commission.

Contractor Hit With Fine for Trench Violations

There’s no excuse why employers should have to work in unprotected trenches.

Twice in seven days, federal workplace safety inspectors found a Sioux Falls contractor put workers at risk of being buried under thousands of pounds of soil while they worked in unprotected trenches at two locations in Tea and Salem.

The discovery continues H&W Contracting LLC’s history of disregarding the serious and often fatal dangers associated with working in an unprotected trench and federal law. Since 2019, the U.S. Department of Labor’s Occupational Safety and Health Administration has cited the company three times for similar violations.

Most recently, OSHA inspectors responded to a complaint on Nov.16, 2021, and found H&W Contracting workers in an unprotected trench in Tea as they installed a 6-inch waterline to a fire hydrant at 271st Street and Kerslake Place.

Six days later, another complaint led OSHA to open a second inspection where it was discovered that company employees were working in five separate unprotected trenches as they replaced storm sewers with new ones in Salem on Nov. 22, 2021.

“Each site had a different foreman, different crew members and a different scope of work. The common thread is H&W Contracting’s continued failure to protect its workers,” said OSHA Area Director Sheila Stanley in Sioux Falls. “Trench collapses are among the construction industry’s most deadly hazards. Workers caught when thousands of pounds of loose soil and rocks pour on and around them often suffer serious injuries or worse. H&W Contracting must change the way it operates before disaster strikes.”

After the November inspection, the agency identified one willful and three serious violations and proposed $122,838 in penalties from the Tea location and one willful violation with proposed penalties of $95,718 for the Salem location.

From 2011-2018, the Bureau of Labor Statistics reports that 166 workers died in trench collapses. In 2019, OSHA notes at least 24 workers died while working on trenching and excavation projects.

In both inspections, OSHA found H&W failed to install trench protection systems and that a competent person failed to remove workers from hazardous situations. In Tea, the company also failed to protect gas, electric, water and communications systems from struck-by or other hazards and did not extend a ladder three feet above the edge of the excavation to allow for safe egress from the trench.

OSHA has a national emphasis program on trenching and excavations. Trenching standards require protective systems on trenches deeper than 5 feet, and soil and other materials kept at least two feet from the edge of a trench. Additionally, trenches must be inspected by a knowledgeable person, be free of standing water and atmospheric hazards and have a safe means of entering and exiting prior to allowing a worker to enter.

The National Utility Contractors Association has declared June 2022 “Trench Safety Month.” OSHA will collaborate with the association for “Trench Safety Stand-Down” week, June 20-24.

OSHA’s trenching and excavation webpage provides additional information on trenching hazards and solutions, including a safety video.

Building Boom: EEOC Hears From Witnesses on Improving Diversity in the Construction Industry

What’s the state of affairs on building a more diverse workforce in the construction industry?

The U.S. Equal Employment Opportunity Commission (EEOC) on May 17 held a hearing which examined the severe and pervasive discrimination in the construction sector, especially against women and people of color. It also examined how to expand opportunities for historically marginalized workers in the industry.

“The construction sector has always been an important component of the American economy, as a major employer of America’s workers, a pathway to prosperity and security, and a key indicator of the nation’s health,” said EEOC Chair Charlotte A. Burrows. “Unfortunately, many women and people of color have either been shut out of construction jobs or face discrimination that limits their ability to thrive in these careers.”

Chair Burrows pointed out further that “Discrimination and harassment in construction can be especially harsh and virulent, including displays of nooses; threats and physical harassment; and sometimes physical or sexual assaults. Yet, often workers do not know where to go to seek help. Today’s hearing shed light on innovative promising practices to address discrimination and increase diversity in this crucial industry.”

The EEOC heard from a wide range of witnesses with expertise on the challenges faced by people who do not fit the usual demographics in the traditionally white and male-dominated construction industry.

For more from the hearing, go here.

Mixed Bag for Disabled Workers in Federal Agency Hiring and Promotion, New Report Shows

The feds are supposed to be the model employer, so how are they doing on employing persons with disabilities?

In a newly issued report, the U.S. Equal Employment Opportunity Commission (EEOC) shows that opportunities for persons with disabilities in the federal workforce are improving, but that further progress is needed on retention and representation in leadership positions.

The study examined federal workers with disabilities’ demographics, their hiring, advancement, and separation from employment at federal agencies, discrimination complaints based on disability, and ways that federal agencies are improving accessibility for persons with disabilities.

Representing 9.4% of federal employees, the participation by people with disabilities in the federal workforce is increasing.  In FY 2014, persons with disabilities represented 8.68% of federal workers. This increased by more than 8% to 9.42% in 2018. Accordingly, federal agencies are raising awareness of accessibility for persons with disabilities and are improving their technological resources to make their workplaces more accessible to people with disabilities.

The study also found that persons with disabilities are promoted at a rate similar to what would be expected based on their governmentwide participation rate.

“The EEOC is delighted to see that our support of people with disabilities has borne fruit in so many ways,” said Carlton Hadden, director of the EEOC’s Office of Federal Operations. “Clearly, though, more progress is needed. The EEOC will continue to work to advance the opportunities and well-being for this still too underutilized and underappreciated segment of our population.”

The report other findings include the fact that persons with disabilities are still underrepresented in federal sector leadership. Among persons with targeted disabilities, 10.7% are in leadership positions and 89.3% are in non-leadership positions. Among persons without disabilities, 16.4% are in leadership positions, and 85.6% are in non-leadership positions.

Targeted disabilities are the most severe ones, including blindness, deafness, partial and full paralysis, missing extremities, dwarfism, epilepsy, intellectual disabilities, and psychiatric disabilities. Individuals with these disabilities typically have the greatest difficulty finding employment. As a matter of policy, the federal government has a special emphasis on recruiting, hiring, and retaining people with targeted disabilities.

Further, the report illustrates that people with targeted disabilities involuntarily left federal employers at more than twice the rate of people without disabilities, and people with any disability were 53% more likely to involuntarily leave than persons without disabilities. Similarly, persons with disabilities and targeted disabilities were more likely to voluntarily leave federal employers than persons without disabilities.

“There’s something wrong with this picture when so many more people with disabilities leave the government than those without,” Hadden said. “Our government needs to be the best workplace it can be for everyone. Federal managers and policymakers need to take a good look at this situation and figure out ways to improve this picture.”

The report also reveals that over a five-year period, federal sector physical disability-based complaints increased by 22% and mental disability-based complaints increased by 72%, outpacing the overall increase in federal sector EEO complaints. This may be due to increased discrimination against persons with disabilities or increased comfort with filing an EEO complaint among persons with disabilities, the report said.

By using 2018 data, this report provides a baseline to measure the impact of EEOC’s final rule, “Affirmative Action for Individuals With Disabilities in the Federal Government,” which clarified that federal employers must take proactive steps to improve opportunities for persons with disabilities.

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.

Rubber Meets the Road: OSHA Fines Continental Tire $341K for Repeat Serious Safety Violations

Following a few basic safety rules would have averted harm here.

In two separate incidents on consecutive days in November 2021, three workers at a southern Illinois tire plant suffered severe injuries in incidents associated with a mixer containing a combustible dust and a flammable gas, guarding moving equipment and the failure to implement and enforce procedures to control the unintentional energization of equipment during servicing.

On Nov. 13, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration received an employer-reported referral from Continental Tire the Americas LLC after an employee unjamming a machine suffered the amputation of three fingers. The next day, one employee suffered severe burns requiring hospitalization and another employee suffered a concussion injury after an industrial rubber-compound mixer exploded.  

Following its investigations, OSHA issued the company citations for two repeated, 16 serious and five other than serious violations. Inspectors allege Continental Tire the Americas LLC had deficient safety procedures for energy control, combustible dust preventative engineering, housekeeping, personal protective equipment, emergency egress routes and hazard communication. The company faces $341,866 in proposed penalties.

“OSHA standards are put in place to prevent workers from suffering life-altering injuries,” said OSHA’s Area Director Aaron Priddy in Fairview Heights. “Continental Tire the Americas must learn from these tragic injuries, review company safety procedures and employee training and make sure workers are safe on the job.”

Based in Fort Mill, South Carolina, Continental Tire the Americas LLC manufactures passenger, light truck and commercial tires at facilities in Barnesville, Georgia; Mt. Vernon and Sumter, South Carolina. Continental is the North American subsidiary of the German-based tire and automotive component manufacturer Continental AG. 

OSHA’s machine guarding, control of hazardous energy and combustible dust webpages provide information on what employers must do to limit worker exposure to machine and combustible dust hazards.

Denny’s Settles EEOC National Origin Bias Suit

National origin harassment is every bit as illegal as discrimination based on any protected status.

RREMC, LLC, doing business as Denny’s Restaurant, a Florida-based company and the third-largest Denny’s franchisee in the United States, has agreed to pay $45,000 to settle a national origin discrimination lawsuit filed by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the federal agency announced Tuesday.

According to the EEOC’s lawsuit, RREMC violated federal law when a Mexican employee at its Brandon, Florida restaurant was subjected to a hostile work environment based on his national origin, culminating in his termination.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an employee’s national origin. The EEOC filed its lawsuit in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. RREMC, LLC d/b/a Denny’s Restaurant, Civil Action No.   , after first attempting to reach a pre-litigation settlement through its conciliation process.

The three-year consent decree resolving the EEOC’s lawsuit has been approved by the federal court. In addition to paying $45,000 in monetary relief, RREMC will adopt and distribute a policy prohibiting national origin discrimination and will post a notice to employees regarding the lawsuit. The decree also requires RREMC to provide specialized training to human resources personnel, managers and employees to ensure that employees are aware of their rights and complaint procedures. The decree also mandates RREMC to provide EEOC with reports of any complaints of national origin discrim­ination and describe its actions taken in response to the complaint.

“Federal law is clear that employers are absolutely prohibited from harassing employees based on their national origin,” said EEOC Acting Regional Attorney Beatriz Andre. “The company’s willing­ness to confer with EEOC about the agency’s concerns and its agreement to implement preventative measures and train management and human resources personnel on preventing national origin discrim­ination will benefit its workers and the company.”

Evangeline Hawthorne, director of the EEOC’s Tampa Field Office added, “National origin discrimination continues to be a problem in the workplace. Employers should be aware that EEOC remains vigilant and will continue to enforce violations of national origin discrimination.”

For more information on national origin discrimination, please visit https://www.eeoc.gov/national-origin-discrimination

The Miami District Office’s jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.

EEOC Recovers $75K for Fired Pregnant Worker

Employers, train your managers on the do’s and dont’s on learning that an employee is pregnant.

Presidente Supermarket No. 31, Inc., a Miami supermarket, has agreed to pay $75,000 and furnish comprehensive injunctive relief to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the federal agency announced Monday.

According to the EEOC’s lawsuit, Presidente violated federal law when it fired an employee because of her pregnancy. The woman worked in the cafeteria and learned she was pregnant, sharing the news with her co-workers. Upon learning of the employee’s pregnancy, Presidente’s cafeteria manager called the employee and terminated her employment, telling her she was no longer needed.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits discrimination against employees because of pregnancy. The EEOC filed its lawsuit in U.S. District Court for the Southern District of Florida, Miami Division (EEOC v. Presidente Supermarket No. 31, Inc., Civil Action No. 21-cv-23411-JEM), after first attempting to reach a pre-litigation settlement through its conciliation process.

The five-year consent decree resolving the EEOC’s lawsuit has been approved by the federal court. In addition to paying $75,000 in monetary relief, Presidente will provide specialized training on sex and pregnancy discrimination to human resources officers and managers to ensure that they are aware of their obligations to prevent workplace discrimination and how to address complaints. The decree also requires Presidente to provide the EEOC with reports of any complaints of sex dis­crim­ination and describe its actions taken in response to the complaint.

“Federal law makes clear that women should never have to choose between motherhood and livelihood,” said EEOC Acting Regional Attorney Beatriz Andre. “The EEOC is pleased and proud to take cases like this.”

Roberto Chavez, Acting Miami District Director added “Employers should be aware that EEOC will vigorously enforce the Pregnancy Discrimination Act and protect the rights of pregnant workers.”

For more information on pregnancy discrimination, please visit https://www.eeoc.gov/pregnancy-discrimination.