Archive for July, 2017

New Rule on Beryllium Exposure Proposed

The U.S. Department of Labor’s Occupational Safety and Health Administration on June 23 announced a proposed rule that would modify the agency’s recent beryllium standards for the construction and shipyard sectors. Representatives of the shipyards and construction industries, as well as members of Congress, raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16. This proposal provides a new opportunity to comment on the rule for those industries and the public. The new proposal would make changes to the rule only for the shipyard and construction sectors. The general industry standard is unaffected by the proposal.

The proposal for shipyards and construction would maintain the requirements for exposure limits (permissible exposure limit of 0.2 μg/m3 and short-term exposure limit of 2.0 μg/m3), which will continue to protect workers from a serious beryllium-related lung disease known as chronic beryllium disease. The proposal instead revises the application of ancillary provisions such as housekeeping and personal protective equipment in the January 2017 final standards for the construction and shipyard industries. OSHA has evidence that exposure in these industries is limited to a few operations and has information suggesting that requiring the ancillary provisions broadly may not improve worker protection and be redundant with overlapping protections in other standards. Accordingly, OSHA is seeking comment on, among other things, whether existing standards covering abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards provide adequate protection for workers engaged in these operations.

The Notice of Proposed Rulemaking for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors will be published in the Federal Register on June 27, 2017. OSHA encourages the public to participate in this rulemaking by submitting comments during the 60-day comment period. Click here for information on submitting comments on the proposed rule and requesting public hearings.

On Jan. 9, 2017, OSHA issued a final rule that established new protections for workers who are exposed to beryllium in general industry, construction, and shipyards. Beryllium is a lightweight metal used primarily in specialty alloys and beryllium oxide ceramics. It is also present as a trace material in metal slags.

OSHA also announced it will not enforce the Jan. 9, 2017, construction and shipyard standards without further notice while determining whether to amend the Jan. 9, 2017, rule.

Fla. Staffing Co. Caught in Document Scheme

A personnel agency in Florida crossed the legal line in the documents that it required job applicants to hand over to prove their U.S. citizenship. As a consequence, the U.S. Department of Justice investigated.

Sellari’s Enterprises, Inc. (Sellari’s), a company that provides staffing services in Orlando, Florida., reached an agreement with the Justice Department on June 30 that resolves the department’s investigation into whether Sellari’s violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

Based on its investigation, the department concluded that Sellari’s requested that non-U.S. citizens present specific documents to prove their work authorization, such as a Permanent Resident Cards or Employment Authorization Documents, while not requesting specific documents from U.S. citizens. All work-authorized individuals, whether citizens or non-citizens, have the right to choose which valid documentation to present to prove they are authorized to work. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

Under the settlement, Sellari’s will pay a civil penalty of $120,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train its staff, and be subject to departmental monitoring and reporting requirements for three years.

“The law protects individuals who are work-authorized from discriminatory obstacles during the employment eligibility verification process,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “Employers must ensure that their employment eligibility verification processes are not applied in an unlawful manner.”

 

The division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.

 

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

 

Applicants or employees who believe they were subjected to different documentary requirements based on their citizenship/immigration status or national origin, or discrimination based on their citizenship/immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance

Ohio Factory Dinged for Machine Hazards

Exposing workers to machine hazards and silica caught up with an Ohio company.

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties from the U.S. Department of Labor’s Occupational Safety and Health Administration after agency investigators found workers at its Groveport plant exposed to machine hazards and silica.

OSHA found one worker was hospitalized after suffering severe injuries when he was caught in a machine, and at least four workers were exposed to excessive levels of silica, which can cause serious health issues.

“Companies must ensure their workers are trained in proper machine safety procedures and provided the necessary personal protective equipment to prevent injuries and illness on the job,” said Dorothy Dougherty, deputy assistant secretary of labor for Occupational Safety and Health. “Continuous monitoring of facilities and procedures are important components of an effective safety and health program.”

On Jan. 3, 2017, a 60-year-old maintenance worker’s leg was crushed after he was caught in a core baker machine while conducting maintenance. OSHA’s investigation found multiple instances of machine safety violations including failing to lock out machinery to prevent movement during servicing.

A second inspection was opened on Feb. 22, 2017, after OSHA inspectors found workers exposed to silica at amounts over the permissible exposure limit. Investigators documented four incidents of silica overexposure in the facility.

In total, the agency found six repeat, 19 serious and five other-than-serious safety and health violations during the two inspections.

OSHA found Amsted Rail failed to implement engineering controls to lower exposure to silica, affix locking devices to machine operating parts during maintenance, adequately guardmachinery, implement a respiratory protection program, evaluate permit-required confined spaces, guard floor openings and shafts to prevent falls and provide adequate personal protective equipment.

Amsted Rail has been placed in OSHA’s Severe Violator Enforcement Program.

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

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Columbus Area Office at 614-469-5582.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

This blog post was featured in the July 21 weekly wrap up by the Ohio Employer’s Law Blog.

Fla. Utility Cited in 3 Workers’ Deaths

A confined space in which employees of a South Florida utility company were working turned out to be deadly. They paid for the company’s disregard of safety with their lives. Now federal safety watchdogs are making the company pay some recompense for their negligence.

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited a South Florida utility company and related contracting company after the agency’s investigation into the deaths of three workers who succumbed to toxic gases in a manhole on Jan. 16, 2017.

Elway Gray, a 34-year-old pipe layer, entered the manhole – a confined space – and quickly became unresponsive. Louis O’Keefe, a 49-year-old laborer, entered the hole and attempted to rescue Gray. After O’Keefe also became unresponsive, Robert Wilson, a 24-year-old equipment operator, followed to help his fallen coworkers. All three men died. Post-incident atmospheric testing in the manhole revealed lethal levels of hydrogen sulfide and carbon monoxide. Two other employees and a volunteer firefighter were also exposed to the toxic gases in the manhole during rescue attempts but survived.

OSHA investigators cited Douglas N. Higgins, Inc. and its related contracting company, McKenna Contracting, LLC with 10 serious violations totaling $119,507, in penalties. The incident-related serious violations are for failing to purge or ventilate the confined space before entry, exposing the workers to an asphyxiation hazard, and not providing necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space.

In addition, OSHA issued serious citations to Higgins and McKenna Contracting for failing to:

  • Develop and implement a written hazard communication program for a worksite in which employees were exposed to dangerous chemicals and gases.
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard.
  • Create and document the confined space entry permit.
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces.
  • Provide a guardrail around the manhole opening, exposing employees to a fall hazard.

“The hazards of working in manholes are well established, but there are ways to make it safe,” said Condell Eastmond, the OSHA area director in Fort Lauderdale. “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

The citations for D.N. Higgins can be viewed at: https://www.dol.gov/sites/default/files/newsroom/newsreleases/OSHA20171001.pdf

Founded in Ann Arbor, Michigan, D.N. Higgins expanded in 1989 with the opening of its Naples office. The company specializes in underground installations of mechanical systems, pump stations, storm water drainage systems and municipal infrastructure. McKenna Contracting, LLC was formed in 2012 and is a related company that provides contract administration and labor to Higgins’ jobsites in Florida.

The companies have 15 business days from receipt of its citations and proposed penalties to contest the findings before the independent Occupational Safety and Health Review Commission.

To ask questions; obtain compliance assistance; file a complaint or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Fort Lauderdale Area Office at 954-424-0242.

$10.5M in Worker Safety Grants Announced

Over the weekend, a pot of money opened up to fund training and education on workplace safety and health hazards.

The U.S. Department of Labor’s Occupational Safety and Health Administration  announced on Friday the availability of $10.5 million in Susan Harwood Training Grants to fund training and education for workers and employers to help them identify and prevent workplace safety and health hazards.

The grants are available for nonprofit organizations including community and faith-based organizations, employer associations, labor unions, joint labor/management associations, Indian tribes, and colleges and universities. Recipients will create in-person, hands-on training and educational programs and develop materials for workers and employers in small businesses; industries with high injury, illness and fatality rates; and vulnerable workers who are underserved, have limited English proficiency or are temporary workers.

Targeted Topic Training grants are available to support the development of quality training programs and educational materials that focus on identifying and preventing workplace hazards. This funding opportunity announcement also makes available funds for Training and Educational Materials Development grants that focus on developing quality training materials.

Learn more about the funding announcement and register to apply at Grants.gov. Applicants must also register in the System for Award Management, and possess a “D-U-N-S” number. D-U-N-S is a unique, nine-digit identification number for each of a business’s physical locations. Businesses seeking federal government grants or contracts may obtain their D-U-N-S number free-of-charge from Dun & Bradstreet.

Harwood applications must be submitted online no later than 11:59 p.m. EDT on Aug. 28, 2017.

Read more about the Susan Harwood Training Grant Program. The public may email questions about the program to the Susan Harwood Coordinator at harwoodgrants@dol.gov or call 847-759-7700.

This blog post was featured on the July 28 weekly wrap up by the Ohio Employer’s Law Blog.

$100K Closes Overtime Case Against Restaurant

A Fresno, California-area restaurant will pay $100,000 to settle findings it violated the Fair Labor Standards Act, the Labor Department announced on July 5.

U.S. Department of Labor Wage and Hour Division investigators found that Colima’s Carniceria y Taqueria owners Maria and Martin Cobian violated the Fair Labor Standards Act by failing to pay employees time-and-a-half their regular hourly rates for hours worked beyond 40 in a week. The employer also failed to make, keep and preserve accurate records of the wages, hours and other conditions and practices of employment.

An agreement between the department and Colima’s owners was reached, and a consent judgment was filed in the U.S. District Court for the Eastern District of California in Fresno on June 15, 2017. The restaurant and its owners agreed to pay $50,000 in overtime due to workers and an equal amount in damages, totaling $100,000 for the employees. The owners will also implement a new time-keeping system and arrange for an all-employee meeting with Wage and Hour Division officials to inform workers of their FLSA rights.

“We look forward to continuing to work with employers and workers alike in the Central Valley to ensure they understand federal labor requirements for overtime and minimum wage,” said Nora Pedraza, the Wage and Hour Division’s assistant director in Fresno. “This settlement puts money back in workers’ pockets while also ensuring the company complies with the Fair Labor Standards Act in the future.”

For more information about federal wage laws administered by division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/.

Washington State Enacts Paid Leave Law

As action at the federal government languishes, the paid family and medical leave tide is having more success at the state level.

Paid family and medical leave is coming to Washington State in 2012, courtesy of a recent law making it the fifth state to have mandatory leave. The other states are California, New Jersey, Rhode Island and New York (effective 2018).

Employees are eligible under the law if they have worked at least 820 hours during what the law defines as a “qualifying period,” or the first four of the last five completed calendar quarters or, if eligibility is not established, the last four completed calendar quarters immediately preceding an employee’s application for leave.

Eligible employee can take up to twelve weeks of paid time off, based on typical workweek hours, for the following reasons the birth or adoption of a child during the first twelve months after the child’s birth; the serious medical condition of the employee or the employee’s family member; or a qualifying exigency as permitted under the federal Family and Medical Leave Act.

An additional two weeks based on a typical workweek may be taken if there is a serious health condition related to the employee’s pregnancy. An employee is not, however, entitled to more than sixteen weeks based on a typical workweek when both medical and family related leave apply. The law specifically provides that paid leave may not exceed “twelve times the typical workweek hours during a period of fifty-two consecutive calendar weeks.” A “typical work week” is defined as forty hours for a salaried employee, and the average number of hours worked per week for an hourly employee.

Both employers and employees will pay into the state program based on percentages of the employee’s wages and the state’s weekly average wage. The first scheduled payments will begin January 1, 2019, when premiums of 0.4% of wages will start being collected.

Employers with 150 or fewer employees can apply for a grant with the state employment security department to cover costs of the premiums when certain criteria are met.