Archive for August, 2019

N.J. Company Cited for Repeat Safety Violations; Penalties for Recidivism Accumulate to $236,000

Repeat violators of workplace safety rules only dig their financial holes deeper.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Paris Produce Inc. for failing to correct workplace hazards identified during an August 2017 investigation at the wholesale supplier’s facility in Pleasantville, New Jersey. The company faces $236,089 in penalties.

OSHA initiated a follow-up inspection in January 2019, after Paris Produce Inc. failed to respond to citations issued in the 2017 investigation. During the follow-up visit, OSHA inspectors found two failure-to-abate violations for allowing employees to operate forklifts without proper training, and failing to develop and implement a hazard communication program for employees using chemicals for cleaning and sanitation. Inspectors also identified two repeat violations involving blocked exits and failing to train employees on hazardous chemicals.

“By failing to fix previously cited hazards, Paris Produce continues to expose employees to preventable workplace safety and health hazards, which is unacceptable,” said OSHA Area Director Paula Dixon-Roderick, in Marlton, New Jersey.

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

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 help ensure these conditions for American working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit https://www.osha.gov.

Policy Ousting Women After 5th Month of Pregnancy Rescinded in Lawsuit Settlement

Repeat after me: It’s for a pregnant woman to decide how long she works, NOT the employer.

A Plus Care Solutions, Inc., a supplier of direct professional caregivers to clients with disabilities, has agreed to pay $200,000 and furnish injunctive relief to settle a pregnancy discrimination lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

According to the EEOC’s lawsuit, since at least 2010, A Plus had required its female employees to sign a pregnancy policy during orientation. The policy provided that their employment terminated at the fifth month of pregnancy. The EEOC further alleged that A Plus enforced its policy against the charging party and several other women by terminating them due to their pregnancy, despite their ability to effectively perform their job duties.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, which prohibits pregnancy discrimination. The EEOC filed suit in U.S. District Court for the Western District of Tennessee, Eastern Division (EEOC et al. v. A+ Care Solutions, Inc., Civil Action No. 1:18-cv-01188), after first attempting to reach a pre-litigation settle­ment through its conciliation process.

The two-year consent decree settling the suit was entered on August 28, 2019, and, in addition to providing monetary relief, enjoins A Plus going forward from removing pregnant employees from the work sched­ule because of their sex and pregnancy, or requiring pregnant employees to disclose their pregnancy. A Plus has also agreed to rescind its policy prohibiting women from working after their fifth month of pregnancy and issue letters of apology to the affected employees. The consent decree further requires the company to hire an equal employment opportunity consultant to review and revise the company’s policies and procedures; and train the company’s executives and human resources personnel on the requirements of Title VII and its prohibitions against pregnancy discrimination. A Plus will also post an anti-discrimination notice and permit the EEOC to monitor the company’s compliance with the consent decree.

“This case represents another example of the EEOC’s efforts to combat pregnancy discrimin­ation in our jurisdiction,” said Faye Williams, regional attorney for the EEOC’s Memphis District Office. “We are happy that we were able to reach a quick resolution with A Plus, and that the company will take appropriate steps to ensure that its policies and procedures are in compliance with federal law.”

Delner Franklin-Thomas, district director of the EEOC’s Memphis District Office, said, “No woman should be fired simply because she becomes pregnant. The EEOC will continue to advance its mission of ensuring that workplaces are free of discrimination, including discrimination against pregnant mothers.”

The EEOC was represented in the litigation by Trial Attorney Jason Bailey. The underlying discrimination charge was investigated by EEOC Enforcement Supervisor William Brown and Investi­gator Candice Williams.

The Memphis District Office of the EEOC oversees Tennessee, Arkansas, and parts of Northern Mississippi.

Fla., Ind. Contractors Fined by OSHA for Exposing Workers to Fall Hazards on Jobs

I’ve got a two-fer for you today; two companies recently ensnared in the OSHA enforcement web for not protecting workers from fall hazards.

And I am not talking about the risk of slipping on leaves. This is much more serious.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited L N Framing Inc. for exposing employees to fall hazards at a Jacksonville, Florida, worksite. The residential and commercial framing contractor faces $58,343 in penalties.

OSHA cited L N Framing Inc. for failing to ensure that employees used a fall protection system while installing roof trusses and interior framing on the second floor of a residential home under construction. OSHA conducted the inspection in conjunction with the Regional Emphasis Program on Falls in Construction. The Agency has inspected L N Framing Inc. twice since 2015, with each previous inspection resulting in a citation under the residential fall protection standard.

“L N Framing Inc. has failed to enforce the proper use of ladders and fall protection at their worksites, endangering the lives of their workers,” said OSHA Area Director Michelle Gonzalez, in Jacksonville, Florida.

The company has 15 business days from receipt of the citations and proposed 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.

In a second case, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Five Star Roofing Systems Inc. – based in Hartford City, Indiana – for exposing employees to fall hazards while performing roofing work at a commercial building site in Lake Barrington, Illinois. The company faces $220,249 in penalties for repeated fall protection violations.

OSHA inspectors cited the company for willful, repeated, and serious safety violations for failing to provide head, eye, face and fall protection; improper use of warning lines during low-sloped roof construction; lack of guards on belts and pulleys; unsafe use of ladder; and failing to designate a safety monitor.

“This company has violated required safety standards repeatedly and placed employees at risk for serious injuries,” said OSHA’s Chicago North Area Director Angeline Loftus. “Employers must develop and implement safety procedures on every jobsite to ensure that employees are protected from falls and other workplace safety hazards.”

The company has 15 business days from receipt of the 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.

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 help 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 https://www.osha.gov.

Backing Down: Trucking Co. Drops Rearside Assessment of Applicants in ADA Settlement

This trucking company shot itself in the legal foot in requiring applicants to have their backs evaluated as a condition of hiring.

National trucking company Hirschbach Motor Lines, Inc. will pay $40,000 and furnish other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced August 22.

According to the EEOC’s lawsuit, Hirschbach, headquartered in Dubuque, Iowa, violated the Americans with Disabilities Act (ADA) by using a pre-employment back assessment to screen out and reject job applicants it regarded as disabled for truck-driving positions. The back assessment tested, among other things, an applicant’s ability to balance and stand on one leg, touch toes while standing on one leg, and crawl. The EEOC said that Hirschbach used the back assessment to screen out job candidates with pre-existing injuries and/or unrestricted medical conditions who had received conditional offers of employment.

The company did so even though the applicants had already received their Department of Transportation medical certifications that authorized them to drive a truck. In fact, many such applicants were quickly hired by other companies after their rejection by Hirschbach. The EEOC charged that this violated the ADA because the assessment was neither related to the job of driving a truck nor consistent with business necessity.

The lawsuit also charged that Hirschbach prohibited over-the-road truck drivers who have an injury or impairment from working until they are 100% free of restrictions and limitations, also in violation of the ADA.

The ADA prohibits employers from discriminating based on disability and explicitly prohibits employers from using qualification standards that screen out or tend to screen out applicants regarded as disabled, unless the standard is shown to be job-related for the position and consistent with business necessity. The ADA also imposes a requirement that employees with disabilities be provided a reasonable accommodation, absent undue hardship on the employer.

The EEOC filed its suit (Civil Action No. 2:18-cv-0017-GZS) in U.S. District Court for the District of Maine in Portland after first attempting to reach a pre-litigation settlement through its conciliation process. The original complainant and one of the other claimants are from Maine.

Hirschbach’s settlement payment of $40,000 will be distributed among three individuals who were denied employment because of the back assessment and who participated in the EEOC’s investigation and lawsuit.

As part of the settlement, Hirschbach is enjoined from using its prior back assessment and is limited to conducting a much narrower range of physical tests. Hirschbach also agreed that it no longer has a 100%-healed policy and will not have one in the future. Hirschbach also will adopt a reasonable accommodation policy, provide training on the policy and the ADA to supervisors, and report semi-annually to the EEOC on how the company has complied with the settlement.

“We are pleased that Hirschbach reached a timely resolution with the EEOC that provides both make-whole monetary relief and important equitable relief,” said Regional Attorney Jeffrey Burstein of the EEOC’s New York District Office. “The company’s willingness to stop the screening practices at issue and consider reasonable accommodations shows a new commitment to ensuring that all individuals qualified for a job have an equal opportunity for hiring.”

EEOC New York District Director Kevin Berry added, “The ADA prohibits arbitrary medical screens and onerous physical tests that prevent people from getting jobs for which they are qualified. The EEOC will continue to be vigilant in seeking to change such unlawful practices.”

The EEOC’s New York District Office oversees New York, Northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.

Million Dollar Award in OSHA Whistleblowing Suit

Let this be a warning to anyone employer contemplating retaliating against employees who report safety violations.

A federal judge in the U.S. District Court for the Eastern District of Pennsylvania has awarded $1,047,399 in lost wages and punitive damages to two former employees of a Montgomeryville, Pennsylvania, manufacturer after a jury found the company and its owner fired them in retaliation for their participation in a federal safety investigation.

On April 2, 2019, a jury determined that Lloyd Industries Inc. and owner, William P. Lloyd, illegally fired the employees because they participated in a 2014 inspection by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA). The inspection followed an incident in which one of the employees’ co-workers suffered the amputation of three fingers.

The company fired one of the employees after OSHA began an onsite investigation, and fired the second employee shortly after OSHA issued citations, and assessed Lloyd Industries with penalties. The acts of retaliation violated Section 11(c) of the Occupational Safety and Health Act (OSH Act). The court’s award of $500,000 in punitive damages is the largest punitive award ever under Section 11(c) of the OSH Act. The court justified the award in light of the defendants’ “deliberative flouting of the act.”

In addition to damages, the judge awarded the former employees $547,399 in front and back pay, prejudgment interest, and additional amounts to compensate for the adverse tax consequences of their receiving a large, one-time payment. The judge also ordered that Lloyd Industries and William P. Lloyd post an anti-retaliation notice at the plant immediately, and never again violate Section 11(c) of the OSH Act.

“The court recognized that all employees have a federally protected right to speak out against unsafe and unhealthy working conditions, to participate in U.S. Department of Labor investigations, and to be compensated if they are terminated in retaliation for exercising those rights,” said Regional Solicitor Oscar L. Hampton III, in Philadelphia. “The significant punitive damages sends a strong message to this employer and others that deliberately violating these laws will not be tolerated.”

OSHA enforces the whistleblower provisions of more than 20 whistleblower statutesprotecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

Under the OSH Act, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help 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.

My thanks to Jon Hyman for featuring this blog post in his weekly blog roundup in the Aug. 30 Ohio Employer Law Blog.

ADA Violation Alleged in Employer’s Refusal to Permit Post-Surgical Employee to Use Crutches

Knee surgery is prevalent enough that an employer should expect to accommodate an employee who needs some assistance to keep working.

But apparently not in this case.

Employer Solutions Group., LLC (ESG), a payroll servicing company head­quartered in Eden Prairie, Minn., violated federal law by firing an employee because she needed crutches after surgery, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Thursday.

According to the EEOC’s lawsuit, the employee, who worked as an account manager, needed to use crutches for a short time after she returned to work following her surgery for a torn anterior cruciate ligament (ACL), part of the knee joint. The EEOC charged that ESG discriminated against the employee based on her actual and perceived disability, and in retaliation for her request to work with crutches.

Firing an employee because of a real or perceived disability, or because the employee requested a reasonable accommodation, violates the Americans with Disabilities Act (ADA). The EEOC filed its lawsuit, EEOC v. Employer Solutions Group, LLC, Case No. 0:19-cv-02315, in U.S. District Court for the District of Minnesota after first attempting to reach a pre-litigation settlement through the EEOC’s conciliation process.

“The issue here was so minor,” said Julianne Bowman, district director of the Chicago district office. “This employee needed to use crutches for a short time after returning from short-term disability leave. The employer fired her for it, which was inappropriate, short-sighted and unlawful.”

Greg Gochanour, regional attorney for the Chicago district, added, “Employers must remember that even relatively short-termed impairments can be recognized as disabilities under the law if they are sufficiently severe, which they were here. The employer’s decision to fire its account manager because she needed crutches for a few weeks is just inexplicable as well as illegal.”

The EEOC’s Minneapolis Area Office is part of the agency’s Chicago District Office, which is responsible for investigating charges of employment discrimin­ation, admin­istrative enforcement and the conduct of agency litigation in Iowa, Illinois, Wisconsin, Minnesota, North Dakota, and South Dakota.

Cookie Dough Maker Hit With Big Safety Fine

Making cookie dough is more dangerous than we realized–for the workers, that is.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Choice Products USA LLC for continually exposing employees to machine safety hazards at the cookie dough manufacturing facility in Eau Claire, Wisconsin. The company faces $782,526 in penalties, and has been placed in the agency’s Severe Violator Enforcement Program.

OSHA cited Choice Products for five egregious willful violations for failing to implement and train employees on lockout/tagout procedures to prevent unintentional contact with machine operating parts during service and maintenance. Inspectors also determined that the company failed to install machine guarding, and comply with forklift regulations.

OSHA cited Choice Products for exposing employees to similar machine hazards following an October 2016 inspection.

“The company managers developed comprehensive lockout/tagout procedures following the 2016 inspection but failed to implement their own safety program,” said OSHA Acting Regional Administrator William Donovan. “Employers are required by law to provide workers with safe and healthful workplaces.”

“Worker safety should be an employer’s top priority every day they’re open for business,” OSHA Principal Deputy Assistant Secretary Loren Sweatt said. “Employers who do not comply with safety standards will continue to face the full enforcement of the law.”

OSHA offers compliance assistance resources on Safeguarding Equipment and Protecting Employees from Amputations and Control of Hazardous Energy – Lockout/Tagout.

The company has 15 business days from receipt of the 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.

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 help 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 https://www.osha.gov.

My thanks to Jon Hyman for featuring this blog in his August 23 weekly roundup of blogs he’s read at the Ohio Employer Law Blog.