Archive for February, 2020

OSHA: Trucking Co. Must Compensate Driver Fired For Blowing Whistle on Safety Violations

See something, say something. Sage advice whenever public safety is threatened.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has determined that Universal Trucking Solutions LLC – a defunct Hartford, Connecticut, commercial motor carrier – and its co-owner, Juan Ramirez, violated the whistleblower protections of the Surface Transportation Assistance Act (STAA).

OSHA investigators found that the company and Ramirez retaliated against a driver who repeatedly voiced concerns to management about faulty vehicle maintenance – including missing or inoperative headlights and air pressure leaks – and the company’s direction to violate Federal Motor Carrier Safety Administration hours of service regulations while driving. Management and Ramirez later changed the driver’s work schedule, resulting in a reduction to the driver’s pay.

The driver resigned in February 2017 after concerns that U.S. Department of Transportation officials would confiscate their Commercial Driver’s License; that their livelihood and/or life could be lost because of defective trucks; and because their employer forced them to ignore hours-of-service rules.

Following the investigation, OSHA ordered United Trucking Solutions and Ramirez to take the following corrective actions:

  • Pay the driver $8,315.81 in back pay and interest, $75,000 in punitive damages, and $50,000 in compensatory damages for mental pain and emotional distress;
  • Pay $21,378.05 in reasonable attorneys’ fees to the complainant’s attorneys; and
  • Refrain from retaliating or discriminating against the complainant in any manner for exercising STAA rights.

“Truck drivers are protected from retaliation when they refuse to violate laws put in place to protect their safety and health,” said OSHA Regional Administrator Galen Blanton in Boston, Massachusetts. “This order reinforces the agency’s commitment to protect workers who exercise their right to a safe workplace, and refuse to place themselves and the public at risk.”

Either party may appeal the order to the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of STAA and more than 20 whistleblower statutes protecting 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 Occupational Safety and Health 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.

Construction Site Safety, Opioids and Suicides on Agenda for March 5 OSHA Teleconference

Interested in construction safety and health? Then consider phoning in to next week’s teleconference organized by an OSHA advisory group.

The U.S. Department of Labor will hold a teleconference meeting of the Advisory Committee on Construction Safety and Health (ACCSH) Workgroups on Thursday, March 5, 2020.

The Education, Training and Outreach workgroup will meet from 10:00 a.m. to 12:00 p.m. EST to discuss trench safety and fall prevention. The Emerging and Current Issues workgroup will meet from 1:00 p.m. to 3:00 p.m. EST to discuss opioids and suicides in construction.

Attendance will be by teleconference only. The teleconference Dial-in Number is 888-658-5408 ; Passcode 7001480. For additional information about the telecommunication requirements for the meeting, please contact Veneta Chatmon at (202) 693-2020, or by e-mail at chatmon.veneta@dol.gov.

Comments and requests to speak must be submitted electronically at http://www.regulations.govthe Federal eRulemaking Portal, by mail or facsimile. Requests and submissions are due by Feb. 28, 2020. Read the Federal Register notice for submission details and telecommunications requirements. The meeting is open to the public.

Established under the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health (OSH) Act of 1970, ACCSH advises the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health on construction standards and policy matters.

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 www.osha.gov.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

My thanks to attorney Jon Hyman for linking to this blog in his February 28 weekly round-up for the Ohio Employer Law Blog.

Grounds for Hope: Coffee Vendor Settles EEOC Race Bias Suit, Agrees to an Inclusive Workforce

The hiring practices dispensed by this coffee service provider left a bad taste for black applicants, but that will now be a thing of the past.

A northern Indiana vending and coffee service provider will pay $22,000 and other significant relief to resolve a race discrimination lawsuit filed last year by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

According to the EEOC’s lawsuit, Coffel Vending Company, located in Mishawaka, Ind., discriminated against a black applicant in filling vending service representative positions.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed its lawsuit in U.S. District Court for the Northern District of Indiana, South Bend Division (EEOC v. Coffel Vending Company, Case No. 3:19-cv-00596-PPS-MGG) in August 2019 after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to providing monetary relief, the consent decree settling the suit requires that Coffel train hiring personnel on Title VII’s prohibition of race-based hiring and how to create an inclusive and diverse workplace. Coffel must also issue an apology letter to the rejected applicant. The EEOC will monitor com­pliance with the four-year decree.

“Applicants must be evaluated for jobs based on their qualifications with no disadvantage because of their race,” said EEOC Regional Attorney Kenneth L. Bird.

EEOC Indianapolis District Director Michelle Eisele added, “We are pleased that Coffel Vending is willing to educate its hiring personnel on discrimination and how best to create a diverse workplace.”

The EEOC’s Indianapolis District Office oversees Indiana, Michigan, Kentucky and parts of Ohio. Eliminating barriers to recruitment and hiring, especially class-based recruitment and hiring practices that dis­criminate against people with disabilities or racial, ethnic, and religious groups, older workers, and women, is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

Rail Car Care Co. Hit With $371K in New OSHA Fines, This time for Violations in Delaware Yard

Wherever this rail car care company operates it seems to bring safety violations with it.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Dana Rail Care for workplace safety and health hazards at the facility in Wilmington, Delaware. The company faces $371,276 in penalties.

OSHA initiated an inspection of the tank rail car cleaning and repair facility in August 2019 after receiving a complaint of numerous safety and health hazards. OSHA cited the company for electrical and explosion hazards, insufficient means of egress, use of defective powered industrial trucks, lack of medical clearance for respiratory protection use, improper use of respirators and inadequate secondary air supply, and lack of signage in a silica-regulated area.

This is the second time in recent months that OSHA has cited Dana Rail Care for safety and health violations. In November 2019, OSHA issued a citation and proposed more than $550,000 in penalties following an employee fatality in Pittston, Pennsylvania, in May 2019. The company has contested that citation and the proposed penalties.

“Failure to comply with OSHA standards leaves employees vulnerable to dangers that can cause serious and potentially fatal injuries,” said OSHA Area Director Erin Gilmore, in Wilmington, Delaware. “Employers have an obligation to provide a safe and healthful workplace for their workers.”

“OSHA has extensive resources to help employers and employees understand how to comply with workplace safety and health standards,” stated Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “Employers must ensure that workers are provided necessary workplace safety and health protections.”

OSHA offers compliance assistance resources on using appropriate respiratory protection, and preventing hazards associated with powered industrial trucks.

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.

Driving a Bargain: Limousine Service Pays $30K to Settle ADA Suit Over Shunned Deaf Applicant

The feds have again come to the rescue of a job applicant who was denied a fair shake at a job because he is deaf.

Des Plaines, Ill.-based M&M Limousine Service will pay a deaf job applicant $30,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Thursday.

The EEOC’s lawsuit charged M&M Limousine with violating federal discrimination law when it refused to hire the applicant based on his disability and failed to consider whether he could do the job, with or without reasonable accommodation.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires an individualized assessment of whether an applicant with a disability can perform the job with or without reasonable accommodation. The EEOC filed its suit (Civil Action No. 1:19-CV-04213) in U.S. District Court for the Northern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process.

M&M will pay $30,000 in monetary relief to the discrimination victim as part of a three-year consent decree settling the suit, signed by U.S. District Judge Gary Feinerman on Feb. 19, 2020. The decree also provides non-monetary relief intended to prevent disability discrimination in M&M’s workplace. M&M must train managers and supervisors on disability discrimination and requests for reasonable accommodations under the ADA. The company must track accommodation requests and complaints of disability discrimination and report them to the EEOC.

Greg Gochanour, EEOC regional attorney in Chicago, noted that the settlement had been negotiated before the parties engaged in extended litigation or pre-trial discovery.

“Early resolution of the case is good news for everyone,” said Gochanour. “The parties avoid the delay and costs associated with protracted litigation. The job applicant receives compensation for his damages sooner rather than later, and corrective measures will soon be put in place.”

EEOC District Director Julianne Bowman added, “This settlement serves as a reminder that the ADA prohibits employers from making discriminatory assumptions about deaf people during the hiring process and requires an individualized assessment as to whether a deaf applicant can perform the essential functions of the job with or without reasonable accommodations.”

$2M Settlement Closes EEOC Case Against Senior Facility: Rigid Leave Policy Was Issue

My-way-or-the-highway HR policies tend to backfire –as here in the form of a “100%” healed policy.

Prestige Care, Inc., Prestige Senior Living, LLC, and their affiliates will pay $2 million and furnish other relief to settle a disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Friday. The EEOC had charged that the companies failed to provide accommodations for employees with disabilities.

According to the EEOC’s lawsuit, the Vancouver, Wash.-based companies and their affiliated nursing and assisted living facilities had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process. The EEOC further charged that Prestige and its affiliates discharged employees with disabilities pursuant to inflexible leave policies.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Eastern District of California (EEOC v. Prestige Care, Inc. et al., Case No. 1:17-cv-01299-AWI-SAB) after first attempting to reach a pre-litigation settlement through its concil­iation process.

In addition to monetary relief, the five-year consent decree settling the suit includes injunctive relief aimed at preventing future disability discrimination. Prestige agreed to retain an external equal employment opportunity monitor to review and revise its policies and procedures regarding ADA compliance and to ensure that Prestige engages in the inter­active process and provides reasonable accommodations. The companies also agreed to provide training and to designate coordinators to handle disability accommodation requests and disability discrim­ination complaints. Eligible claimants will be notified of their right to request a reasonable accommo­dation when applying to work for Prestige.

“We commend Prestige for its commitment to the ADA and for agreeing to comprehensive injunctive remedies,” said Anna Park, regional attorney for the EEOC’s Los Angeles District Office, which includes the San Joaquin Valley in its jurisdiction. “We encourage all employers in the nursing and assisted living industry to follow suit and review their disability accommodation policies and practices to ensure they are in compliance with federal law.”

Melissa Barrios, director of the EEOC’s Fresno Local Office, added, “One of the EEOC’s national priorities is eliminating qualification standards and inflexible leave policies that discriminate against people with disabilities. This resolution should send a strong message to employers that the EEOC is dedicated to its mission.”

Anyone who worked for Prestige Care, Inc., Prestige Senior Living, LLC, or their affiliates between 2011 and 2018 who believes he or she may have been terminated or excluded from employ­ment with Prestige due to a mental or physical impairment should contact the EEOC at (877) 461-7818. Such people may be entitled to monetary relief from this settlement. The Prestige locations covered by this settlement include facilities in California, Oregon, and Washington.

Fork It Over: Ga. Garden Store Pays $148K Penalty for Safety Hazards at Mulch Plant

Mulching is more than adding nutrients to your garden. Workers at this mulch manufacturing facility found out just how dangerous an operation it can be.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Garick LLC – operating as Smith Garden Products – for exposing employees to safety hazards at the Cumming, Georgia, facility. The manufacturer of specialty mulch products faces $148,867 in penalties.

OSHA cited Garick LLC for failing to ensure energy control procedures contained clear and specific steps to limit the release of hazardous energy. OSHA also cited the company for failing to provide and ensure that employees affixed lockout/tagout devices to block machines and equipment from energy sources, train employees to recognize applicable hazardous energy sources, and conduct a periodic inspection of the lockout program at least annually. Other violations included failing to ensure machinery was effectively guarded, allowing employees to operate defective powered industrial trucks, and failing to reduce compressed air to the appropriate level before allowing employees to use it for cleaning purposes. OSHA conducted the inspection in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

“Employers must implement comprehensive safety and health programs to readily identify and correct hazards in the workplace to prevent injuries or fatalities,” said OSHA Atlanta-East Acting Area Office Director Michael Hejazi.

OSHA has compliance resources on how employers can control the release of hazardous energy, and how to protect workers from unguarded machines and damaged forklifts.

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.

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 https://www.osha.gov

$25K Settlement Closes EEOC Case Against Store That Rejected Applicant With Tourette’s

The hiring manager at this convenience store would have been better served by focusing on a job applicant’s qualifications, not his facial tics and mannerisms.

Home Service Oil Company, doing business as Express Mart, will pay $25,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

The EEOC charged that the Barnhart, Mo.-based company, which operates nine Express Mart convenience stores near St. Louis, violated federal disability discrimination law by failing to hire a job applicant with Tourette’s syndrome and neurofibromatosis for a part-time sales clerk position at its Cedar Hill, Mo., store because of his medical conditions.

According to the EEOC, the store manager refused to consider the applicant for employment because of his noticeable facial tic caused by his medical conditions. The EEOC alleged the store manager told her assistant store manager that she did not want such an individual working in the store and threw away his application.

Such alleged hiring discrimination violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to consider qualified job applicants because of their physical or mental disabilities. The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Home Service Oil Co. d/b/a Express Mart, Civil Action No. 4:19-cv-02645JAR) in 2019 in U.S. District Court for the Eastern District of Missouri.

The three-year consent decree settling the suit, entered by Judge John A. Ross, requires Home Service Oil Company to pay compensatory damages of $25,000 to the discrimination victim. In addition to other relief, the company will encourage job applicants with disabilities to apply for open positions; ensure that it has strong policies and procedures in place to prevent disability discrimination; provide training to managers regarding disability discrimination; provide reasonable accommodations to disabled employees and applicants; and report complaints of disability discrimination to the EEOC.

“We appreciate Home Service Oil Company’s commitment to encouraging applicants with disabilities to apply for positions in their stores going forward,” said Andrea G. Baran, the EEOC’s regional attorney in St. Louis. “People with disabilities make significant contributions to workplaces every day and are too often an untapped resource, even in a tight labor market.”

L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District office, added, “A strong human resources presence is essential to ensure employers comply with the law. With the company’s new leadership in this area, we are optimistic that this employer will offer equal employment opportunities to qualified applicants regardless of physical or mental conditions that have no bearing on their ability to perform the job.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

We All Fall Down–Too True at This Cookie Maker Cited by OSHA for Safety Violations, Fined $221K

The cookie may not crumble, but these employees did at the warehouse that manufactures them, owing to the employer’s ignoring safety rules.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Nonni’s Foods LLC for exposing employees to falls and other hazards at the Ferndale, New York, facility. The manufacturer of premium cookies faces $221,257 in penalties.

OSHA opened an inspection on Aug. 22, 2019, after learning that an employee fell on Aug. 7, 2019, and was hospitalized. Inspectors discovered that the employer instructed employees to retrieve stored material by standing on the forks of a forklift that elevated them to a storage area atop a break room. The storage area lacked guardrails to prevent falls. Both conditions exposed employees to falls.

Nonni’s Foods LLC also failed to re-train operators on appropriate use of a forklift, and did not report the employee’s injury to OSHA within 24 hours as required. Additionally, two rotating bearings on a conveyor lacked guarding to protect employees against caught-by injuries.

“Employers must provide training, and utilize appropriate equipment and work practices to protect workers from falls and amputations,” said OSHA Albany Area Director Amy B. Phillips.

OSHA’s Fall Protection in General Industry fact sheet summarizes employee fall protection measures and the Powered Industrial Trucks page provides detailed information on hazards, safeguards, training and safe operation of forklifts. OSHA’s Safeguarding Equipment and Protecting Workers from Amputations booklet provide information on identifying and managing common amputation hazards when operating and using stationary equipment.

Nonni’s Foods LLC 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 http://www.osha.gov.

OSHA Tweaks 27 Standards and Regulations; Construction, Longshoring Among The Impacted

It’s not sexy stuff. But if you are an affected industry then pay attention to last week’s adjustments to more than two dozen safety standards and regulations.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently published technical corrections and amendments to 27 OSHA standards and regulations. This administrative rulemaking corrects minor misprints, omissions, outdated references, and tabular and graphic inaccuracies. The revisions apply to several industry sectors, including general industry, construction, shipyard employment and longshoring. Some revisions may reduce employer costs, and none expand employer obligations or impose new costs.

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 www.osha.gov.

My thanks to Jon Hyman for linking to this blog post in his weekly roundup for Friday, February 21.