Repeat Offender: OSHA Fines Ohio Contractor $237K for 6th Safety Violation In Last 4 Years

Maybe fines aren’t punitive enough against an employer that so casually violates safety rules.

A Hartsville contractor has been cited for the sixth time since 2018 for exposing workers to deadly fall hazards on two separate Ohio job sites.

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration determined ILS Construction and its owner, Ivan Lowky, failed to provide fall protection equipment to workers and train them on its use. OSHA proposed penalties totaling $237,013 following the October and December 2021 inspections.

“Complying with federal safety regulations is not optional. When an employer requires employees to work from heights greater than six feet, they must provide fall protection, appropriate equipment and train workers to use the equipment safely,” said OSHA Area Director Howard Eberts in Cleveland. “Fall hazards make roofing work among the most dangerous jobs in construction and the most frequently cited hazard by federal safety inspectors. Workers should expect their employer to keep them safe on the job and OSHA will hold employers accountable for failing to do so.”

On Dec. 2, 2021, OSHA inspectors observed roofers employed by ILS Construction working on a residential home in Stow. The agency issued three willful, two repeat and two serious violations. OSHA cited the company and Lowky for not providing fall protection and training, failing to ensure workers used hard hats and safety glasses and not providing a ladder extended at least three feet above the landing surface.

At the time of the December inspection, OSHA was already investigating the company after observing employees working at heights greater than 10 feet on a Parma commercial building on Oct. 27. OSHA cited the employer for a lack of fall protection and training and for not providing a ladder or others means to exit elevated surfaces safely.

OSHA previously cited Lowky and ILS Construction for similar hazards in 2018, 2019 and 2020. Lowky has not paid previously issued OSHA penalties.

The Bureau of Labor Statistics reports in 2020 that 1,008 construction workers died on the job, 351 of them are 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, set for May 2-6.

The company has 15 business days from receipt of its 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.

Staffing Agencies Out $125K in Settling ADA Suit Over Employee’s Return to Work Following Leave

Second-guessing an employee’s medical clearance to return to work came at a cost.

TrueBlue, Inc. and PeopleReady, Inc., labor sourcing companies with offices across the United States, will pay $125,000 and furnish significant equitable relief to resolve a federal disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Thursday.

According to the EEOC’s lawsuit, the companies fired an employee because of her psychiatric disability. The employee, who worked at the Manassas, Virginia office of TrueBlue’s subsidiary, PeopleReady, was not permitted to return to work after being medically cleared to do so following a hospitalization for her disability. The suit further alleged that the companies terminated the employee because she required future intermittent leave for outpatient medical appointments.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities and prohibits employers from taking adverse employment actions based on an individual’s disability or need for accommodations. The EEOC filed suit (Civil Action No.1:21-cv-01098) in U.S. District Court for the Eastern District of Virginia, Alexandria Division, after first attempting to reach a pre-litigation settlement through its voluntary administrative conciliation process.

In addition to providing the former employee $125,000 in monetary relief, the two-year consent decree settling the suit provides for programmatic relief intended to prevent further disability discrim­ination. The decree requires that the companies implement an ADA reasonable accommo­dation policy to ensure that they will undertake the necessary interactive process to consider requests for medical leave as reasonable accommodations. Under the decree, the companies will also provide training on ADA com­pliance, with an emphasis on reasonable accommodations, and will provide periodic reports to the EEOC.

“Federal law clearly obligates employers to provide reasonable accommodations, including providing medical leave needed because of an employee’s disability, absent undue hardship – and there was no such hardship to the employer in this case,” said Mindy E. Weinstein, director of the EEOC’s Washington Field Office.

Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office, said, “The ADA protects people with mental health disabilities, and the EEOC is absolutely committed to enforcing that all-important national law.”

The EEOC’s Washington Field Office has jurisdiction over the District of Columbia and the Virginia counties of Arlington, Clarke, Fairfax, Fauquier, Frederick, Loudoun, Prince William, Stafford and Warren; and the independent Virginia cities of Alexandria, Fairfax City, Falls Church, Manassas, Manassas Park and Winchester.

Mining Co. Settles EEOC Racial Harassment Suit

Ignoring abuse by co-workers is not a viable solution for the employer.

Eureka Stone Quarry, Inc., a company engaged in mining and sales of sand, stone and other materials in eastern Pennsylvania, will pay $58,000 and furnish significant injunctive relief to settle a race and retaliatory harassment lawsuit brought by the U.S. Equal Employment Opportunity Commis­sion (EEOC), the federal agency announced Wednesday.

According to the EEOC’s lawsuit, an African American heavy equipment operator at Eureka Stone’s Pocono Quarry in eastern Pennsylvania was subjected to egregious racial harassment by coworkers for several years. These included the commonplace use of racial epithets such as “n****r,” threats of violence directed at the Black Lives Matter movement, and other offensive statements that reflected racial bias and stereotypes.

The harassment became increasingly severe over time and eventually culminated in the Black worker being threatened with firearms, including an incident in which one of the harassers fired multiple shots from a rifle on company property while the African American worker was nearby and not long after he had driven past the harasser, the EEOC charged.

Eureka Stone was aware of the racial harassment but failed to take action to stop it from occurring, thereby forcing the African American worker to resign his employment, according to the lawsuit.  

Racial harassment and other race discrimination in employment, as well as retaliation for opposing such practices, violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit under Title VII in U.S. District Court for the Eastern District of Pennsylvania (U.S. EEOC v. Eureka Stone Quarry, Inc. & James D. Morrissey Inc., Civil Action No. 2:21-cv-04060-PD), after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC and Eureka Stone subsequently agreed to early settlement of the lawsuit by consent decree without any federal court adjudication of liability issues in the case, and EEOC opted to dismiss its claims against a second defendant, James D. Morrissey, Inc.

In addition to paying the $58,000 in monetary relief to the African American former employee, the consent decree settling the suit, now approved by the federal court, enjoins future violations of Title VII, including any future racial harassment or retaliation.

The decree also requires that Eureka Stone implement measures designed to prevent workplace harassment, including revised anti-harassment policies and complaint procedures, anti-harassment and investigations training, and the appointment of a company equal employment opportunity officer responsible for investigating and remedying potential harassment and possessing full authority to carry out those responsibilities. The decree also provides for related reporting to EEOC of all future complaints of racial harassment, investigations of those com­plaints, and remedial actions taken.

“We are very pleased that Eureka Stone worked collaboratively with EEOC to craft a compre­hensive settlement that will greatly benefit the company’s employees,” said EEOC Philadelphia Regional Attorney Debra M. Lawrence. “In addition to providing monetary compensation to the aggrieved worker, the extensive policies, procedures and training that Eureka Stone agreed to implement are designed to promote a fair and inclusive workplace free from racist harassment and retaliatory conduct. Imple­menting such measures is a smart business decision that benefits both workers and the company.”

EEOC Philadelphia District Director Jamie Williamson added, “Despite the progress that our nation has made to fulfill the promise of equality embodied in the Reconstruction Amendments and subsequent legislation, including Title VII, the evil of racial harassment and other forms of race discrim­ination persists in the American workplace. The EEOC is committed to ensuring that all workers enjoy fair and inclusive workplaces that respect their basic human dignity and that employers comply with their duty to protect their employees from workplace racism.”

The lawsuit was commenced by the EEOC’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over Pennsylvania, West Virginia, Maryland, Delaware, and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

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

Farsighted: Vision Co. Settles ADA Suit Over Firing of Optometrist With Medical Condition

Fear mustn’t guide employment decisions is the lesson of this case.

Blue Sky Vision, L.L.C., a Delaware-based management services organ­ization that provides support to eye care providers, will pay $67,590 and provide other relief to settle a federal disability-discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced February 22. The EEOC charged that Blue Sky Vision violated federal law when it subjected an employee to an unlawful medical inquiry and then fired him because it perceived him to be disabled.   

According to the EEOC’s lawsuit, the employee was hired in June of 2018 as an optometrist for Blue Sky Vision in Grand Rapids, Michigan. Approximately three months later, the employee mentioned his medical condition to a coworker. Blue Sky management learned of the employee’s condition and, without evaluating whether the condition would affect his ability to perform his job, told him that he was a liability and sought his resignation. When the employee argued that Blue Sky’s actions were illegal, the company postponed his termination, placed him on a leave of absence and required him to submit to an overly broad and intrusive medical inquiry into health conditions unrelated to his ability to perform his job. When the employee opposed the breadth of the medical inquiry and refused to submit to it, Blue Sky sent him an official termination letter, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from improper medical inquiries and from discrimination based on actual or per­ceived disabil­ities. The EEOC filed suit (EEOC v. Blue Sky Vision, LLC. Case No. 1:20-cv-00285) in U.S. District Court for the Western District of Michigan after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief, the 2-year consent decree settling the suit provides for injunctive relief, training on the provisions of the ADA, and implementation of a policy against disability discrimination. 

“An employer cannot fire someone based on an unfounded belief that the individual’s medical condition renders him unable to perform his job,” said EEOC Regional Attorney Kenneth Bird. “Nor should an employer commence a medical inquiry that is broader than necessary to determine whether a medical condition impacts an employee’s ability to safely perform his job.”   

The Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky and parts of Ohio.

Remedy, Stat: N.M. Hospital Out $82K in Settling With EEOC Over Sexual Harassment of Manager

Hopefully, no other female employee at this facility has to endure what this one did.

Albuquerque-AMG Specialty Hospital, LLC and Acadiana Manage­ment Group, LLC, operating AMG Specialty Hospital in Albuquerque, N.M., will pay $82,481 and furnish other relief to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

The EEOC charged that AMG violated federal law by subjecting a female director of case management, Moriah Smith, to a sexually hostile work environment, and that AMG’s failure to remedy the abuse ultimately forced her to leave the job.

According to the EEOC’s lawsuit, the male chief clinical officer at AMG sexually harassed Smith by subjecting her to repeated sexual comments, sexually explicit texts to her work cellphone, and un­wanted physical touching at work. In response to her complaint, AMG did not take timely appropriate action. The EEOC also charged that AMG’s failure to prevent or remedy the harassment created intolerable working conditions for Smith, which forced her to resign.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment as a form of sex discrimination. The EEOC filed suit in U.S. District Court for the District of New Mexico (EEOC v. Albuquerque-AMG Specialty Hospital, LLC and Acadiana Management Group, LLC,Civil Action No.1:21-cv-00363) after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, signed by Judge Kenneth J. Gonzales today, requires AMG to pay Smith $82,481 in back pay and compensatory damages. The decree also requires AMG to take several affirmative steps to prevent sexual harassment and sex-based discriminatory practices from happening in the future. These steps include training, policy and procedure changes, record keeping, reporting, and discipline of the appropriate people at AMG.

“Employers are responsible for preventing and remedying the sexual harassment and discrimination of its employees,” said Supervisory Trial Attorney Loretta Medina of the EEOC’s Albuquerque Area Office. “Employers will be held responsible when they do not protect employees from sexual harassment, blame the victim for the way she dressed at work, and, after a cursory investigation, fail to take prompt action to appropriately discipline the harasser, a key element in stopping sexual harassment.”

Christopher Green, the area director of the EEOC’s Albuquerque Area Office, added, “Employers must take all forms of complaints of sex harassment seriously, investigate them thoroughly, promptly and appropriately, and  make sure that the employees who bring these EEO complaints feel safe in the workplace after reporting the harassing conduct.”

EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and  part of New Mexico (including Albuquerque).

OSHA Proposes Updates for Industrial Trucks

On this 2/22/22, the feds move to update a 50-year-old standard on industrial trucks.

The U.S. Department of Labor announced Feb. 15 a Notice of Proposed Rulemaking by the department’s Occupational Safety and Health Administration to improve worker safety and health by ensuring the agency’s general industry and construction industry rules reflect current industry practice and state-of-the-art technology.

The proposed rule will update the design and construction requirements for OSHA’s powered industrial trucks standards for general industry and construction, including fork trucks, tractors, platform lift trucks, motorized hand trucks and other specialized industrial trucks powered by an electric motor or an internal combustion engine.

Under the proposed rule, OSHA will update its general industry and construction standards for powered industrial trucks by adding references to the latest design and construction requirements published by the American National Standards Institute in conjunction with the Industrial Truck Standards Development Foundation.

The first standard for powered industrial trucks took effect in 1971, based on industry consensus standards in 1969. Since then, national consensus standards have been updated several times.

In addition to updating the design and construction requirements for future manufactured powered industrial trucks, the proposed rule will also address equipment manufactured before the effective date of the final rule. 

This proposal is part of a series of regulatory projects by OSHA to update nearly 200 consensus and industry standards to reflect the current versions of consensus and national industry standards.

Submit comments online, identified by Docket No. OSHA-2020-0008 at the Federal eRulemaking Portal. Read the Federal Register notice for submission instructions. Deadline for submitting comments is May 17, 2022.

Learn more about powered industrial trucks.

Learn more about OSHA.

Employer Sued by DOL for Retaliation Against Worker Who Raised Safety Issue in Group Chat

A reminder that federal law forbids retaliation against employees for raising safety issues.

The U.S. Department of Labor has filed suit against a Florida security contractor that terminated a worker after they raised concerns in a work group chat on a secure messaging app about safe firearm storage and coronavirus-related workplace hazards, including a lack of physical distancing and other potential exposure risks.

Filed in the U.S. District Court for the Eastern District of Texas, Beaumont Division, the department names VRP Group Inc. – doing business as Regius Investigations and Protective Services – alleging the employer illegally terminated the worker in August 2020, shortly after the worker texted supervisors in the work group chat to report hazardous work conditions. VRP Group notified the worker of their termination using the same messaging app.

The worker was among a group of Regius employees assigned initially to supply security services to Entergy Texas to secure properties near Port Arthur. After Regius directed the worker and their colleagues to relocate from an area hotel to temporary housing, the worker raised concerns with their supervisors about the move, citing COVID-19 policies and protocols and the need for secure firearm storage.

Following their termination, the employee filed a retaliation complaint with the department’s Occupational Safety and Health Administration. An investigation by OSHA’s Dallas Regional Office of Whistleblower Protection Programs found that the Gainesville-based, VRP Group Inc. violated Section 11(c)(1) of the Occupational Safety and Health Act for terminating the employee because they engaged in the protected activities of making a good faith health and safety complaint.

“Employers who retaliate against workers who raise valid safety concerns create an unsafe work environment for all of their workers,” said OSHA Regional Administrator Eric S. Harbin in Dallas. “In addition to violating federal law, such coercive behavior can have a chilling effect on workers that may prevent them from reporting issues or conditions that put their health and well-being, and others – including their co-workers – at risk.”

In its complaint, the department asks the court to order VRP Group Inc. to do the following:

• Permanently enjoin and restrain the employer, its officers, agents, servants, employees and those persons in active concert or participation with them, from violating the provisions of Section 11(c)(1) of the act.
• Pay the worker damages, plus interest, for all past and future lost wages and benefits resulting from the termination; reimbursement for costs and expenses; compensatory damages, including for compensation for emotional pain and distress; and exemplary or punitive damages in an amount to be determined at trial.
• Expunge from all personnel and company records references to the circumstances giving rise to their unlawful suspension and termination of the complainant.
• Post a notice for employees stating that the defendants will not in any manner discriminate against any employee for engaging in activities protected by Section 11(c) of the OSH Act.

“The U.S. Department of Labor’s action sends a clear and strong message to employers. Those who employ people must never forget that worker safety should be their first concern,” said Regional Solicitor of Labor John Rainwater in Dallas. “Punishing an employee who raises legitimate safety concerns will not be tolerated. We will pursue all appropriate legal remedies to protect workers’ rights to report an unsafe condition.”

VRP Group Inc. provides private, government, corporate investigations, special response and disaster response teams, and campus and high-profile persons protection.

The department’s regional Office of the Solicitor in Dallas is litigating the case.

OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

OSHA Issues Safety Plea in Healthcare Industry

Until a final safety measure is issued, these exhortations to obey existing rules will have to do.

U.S. healthcare workers experienced a staggering 249 percent increase in injury and illness rates in 2020, based on employer-reported data, as they encountered serious safety and health hazards while serving those in need and labored countless hours battling the pandemic. In fact, healthcare and social assistance workers combined for more injuries and illnesses than any other industry in the nation.

As the nation observes National Caregivers Day on Feb. 18, the U.S. Department of Labor’s Occupational Safety and Health Administration urges healthcare employers, and those in related industries, to take immediate actions to help make 2022 safer for these workers.

“We recognize our caregivers for the extraordinary sacrifices they continue to make working on the frontline throughout the pandemic to keep us healthy and safe – and we owe it to them to ensure their employers are doing all they can to protect them,” said Assistant Secretary of Labor for Occupational Safety and Health Douglas Parker. “The dangers healthcare workers face continue to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them.”

OSHA is working expeditiously to issue a final standard to protect healthcare workers from COVID-19. As the agency works towards a permanent regulatory solution, employers must continue to comply with their obligations under the General Duty Clause, the Personal Protective Equipment and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the hazard of COVID-19 in the workplace.

To combat workplace injury and illness most effectively, employers should create and use a proactive safety and health program that addresses hazards, training and preventive measures to keep workers safe.

Companies may contact their local OSHA On-Site Consultation program to discuss details and schedule an on-site safety and health evaluation. Find the On-Site Consultation program nearest you by calling 1-800-321-OSHA (6742) or visiting OSHA’s program website.

Learn more about OSHA and resources for coronavirus safety.

Fed Agencies to Hold Event on Ending Retaliation

Next week’s online dialogue is the next iteration of this multi-agency effort.

The U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), and the National Labor Relations Board (NLRB) will host an online dialogue entitled “Ending Retaliation, Securing Racial and Economic Justice in the Workplace” to discuss the impact of employer retaliation on workers, particularly low wage workers, who may also suffer racial discrimination in the workplace.

This event, part of a multi-agency initiative launched in November 2021, highlights a shared commitment to the agencies’ vigorous enforcement of worker protections and economic justice. Agency leaders will discuss their roles and examine how federal labor agencies can cooperate to protect workers from adverse employment decisions that can have serious impacts on their livelihoods.

The event will be held next Thursday, February 24, 2022, 12:00-1:00 p.m. EST.

Registration is required. Video/Dial-in information will be sent separately upon registration.

Registration link: https://eeoc.zoomgov.com/webinar/register/WN_ZPcvu09cSMOC5jOD0EiJAA

Due to anticipated high volume, please connect early to ensure access. A recording will be available at a later time after the event.

 

Keep on Trucking: Carrier Settles ADA Suit Over Firing of Drivers Who Exhausted FMLA Leaves

If you’re about to fire an employee because he’s exhausted his FMLA leave, reconsider.

A trucking company and a property management company will pay $65,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

The defendants in the EEOC’s case are Groendyke Transport, Inc., one of the largest tank truck carriers in the United States, headquartered in Enid, Oklahoma, and McKenzie Property Management (formerly known as McKenzie Tank Lines, Inc.), headquartered in Tallahassee, Florida. The EEOC said that Groendyke’s predecessor, McKenzie Tank Lines, failed to provide a reasonable accommodation and fired two long-term employees because of their disabilities.

According to the EEOC’s lawsuit, it was McKenzie’s policy to terminate employees not able to return to work after exhausting the maximum 12 weeks of medical leave under the Family and Medical Leave Act (FMLA). One of the employees, who worked as a tractor trailer mechanic in Pensacola, Florida for 30 years, was denied additional leave of approximately three weeks after exhausting his FMLA leave and was dismissed. The other employee, who worked as a truck driver for 20 years in Houston, needed approximately one week of additional leave after his FMLA leave expired, but was fired instead.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide a reasonable accommodation if it does not create an undue hardship. The EEOC’s Birmingham District Office filed its lawsuit (EEOC v. Groendyke Transport, Inc and McKenzie Property Management, Inc. f/k/a McKenzie Tank Lines, Inc.., Case No. 3:19-cv-02830-RV-EMT) against McKenzie in U.S. District Court for the Northern District of Florida on July 29, 2019, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC later amended its suit to add Groendyke as a defendant after learning McKenzie had sold substantially all of its assets and operations to Groendyke.

In addition to monetary relief, the three-year consent decree settling the lawsuit requires the companies to provide training to their employees on their obligations under the law and develop, implement and maintain anti-discrimination and anti-retaliation policies. The decree also prohibits them from engaging in any unlawful discrimination or retaliation because of disability. The decree further requires that the companies post notices on their bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

“Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA – specifically, its requirement that an employer engage in an interactive process with an employee to determine whether an accommodation that does not create an undue hardship is possible,” Marsha Rucker, regional attorney for the EEOC’s Birmingham District, said. “Additional leave can be a reasonable accommodation.”

EEOC Birmingham District Director Bradley Anderson added, “This case serves as a reminder that the ADA can provide additional protection to employees beyond that required by the FMLA. We appreciate the efforts of Groendyke and McKenzie to reach a resolution of this lawsuit that provides equitable and monetary relief for these two employees who devoted much of their life in service to their employer and were fired through no fault of their own.”

The EEOC’s Birmingham District consists of Alabama, Mississippi (except 17 northern counties) and the Florida Panhandle.