Cave-In Death Costs Contractor $375K in Fines

I had hoped that in the new year I wouldn’t have to write about trench collapses anymore.

Hope extinguished.

A federal investigation has found a Manchester contractor’s failure to provide legally required safeguards and make sure they were in place to prevent trench collapses contributed to the July 22, 2022, death of an employee buried when an 8-foot-deep trench caved in.

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration determined Botticello Inc. exposed their worker to deadly hazards as he connected drainage piping at a residential development construction site in Vernon. Previously, in November 2015, OSHA inspectors identified four serious violations related to trenching work by Botticello Inc. at a Stafford worksite.

“This deadly cave-in and the worker’s death should never have happened,” said OSHA Area Director Dale Varney in Hartford, Connecticut. “After a previous OSHA inspection, Botticello Inc. knew of the dangers of working in an unprotected trench and the need to inspect the trench and ensure required effective cave-in protection was in place before any employee entered the trench. The company, however, still chose to ignore these required safeguards and now a worker’s family, friends and co-workers are left to grieve.”

Specifically, OSHA found that Botticello Inc. failed to:

• Provide the trench with a protective system to prevent it from collapsing and caving in on workers.
• Have a competent person conduct inspections before and during the work to identify and correct any hazardous conditions before employees entered the trench.
• Ensure the 135-foot-long trench contained sufficient means of egress to allow employees to safely exit.

As a result of the violations and the employer’s prior knowledge, OSHA cited Botticello Inc. for three willful violations and proposed $375,021 in penalties.

View the citations.

Federal trenching safety standards require protective systems for trenches deeper than 5 feet, and that soil and other materials be kept at least 2 feet from the trench’s edge. Trenches must also be inspected by a knowledgeable person, be free of standing water and atmospheric hazards and have a safe means of entry and exit before a worker may enter.

“By most estimates, one cubic yard of soil can weigh as much as 3,000 pounds – about the weight of a subcompact car – and trench collapses happen in seconds, which helps explain why they are among the construction industry’s most fatal hazards,” Varney explained. “OSHA has a National Emphasis Program in place to alert employers and workers of the dangers, and to hold violators accountable. We encourage anyone who sees workers in an unsafe trench to help us save lives by reporting the hazardous situation to OSHA.”

The family owned Botticello Inc. provides construction contracting services including site work, rock crushing, stump grinding and demolition.

The company has 15 business days from receipt of citation 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.

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

OSHA Ups Emphasis on Dust in Workplace

Dust is literally a combustible substance in many workplaces. The government aims to reduce that danger.

The U.S. Department of Labor’s Occupational Safety and Health Administration on Friday issued a revised Combustible Dust National Emphasis Program. Any combustible material can burn rapidly when in a finely divided form. If such a dust is suspended in air in the right concentration, under certain conditions, it can become explosible. The purpose of the revised emphasis program is to continue OSHA inspections of facilities that generate or handle combustible dusts likely to cause fire, flash fire, deflagration and explosion hazards.

The NEP was revised based on enforcement history and combustible dust incident reports. In 2018, wood and food products made up an average of 70 percent of the materials involved in combustible dust fires and explosions. Incident reports indicate that the majority of the industries involved in combustible dust hazards are wood processing, agricultural and food production and lumber production, but others are susceptible as well.

The revised program sets forth a new approach for locating and inspecting subject establishments. The following industries were added to the program because OSHA found they had a higher likelihood of having combustible dust hazards or experienced combustible dust-related fatalities/catastrophes:

• 311812 – Commercial Bakeries
• 325910 – Printing Ink Manufacturing
• 321912 – Cut Stock, Resawing Lumber, and Planning
• 316110 – Leather and Hide Tanning and Finishing
• 321214 – Truss Manufacturing
• 424510 – Grain and Field Bean Merchant Wholesalers

OSHA initiated the Combustible Dust NEP in October 2007 after a number of combustible dust incidents that resulted in numerous fatalities and serious injuries. The agency reissued the emphasis program in March 2008 after a combustible dust explosion at a sugar refinery in Georgia. Since 2007, the agency has conducted about 600 inspections annually under this emphasis program.

“The combustible dust NEP is one the agency’s important programs for proactively inspecting the nation’s most hazardous facilities before a catastrophic incident occurs,” stated Assistant Secretary for Occupational Safety and Health Doug Parker.”The results of a combustible dust fire or explosion can be catastrophic to workers and the facilities that they work.”

This revised NEP directive replaces the March 2008 directive and remains in effect until OSHA issues a cancellation notice. This revised directive does not replace another similar OSHA directive referred to as the grain handling facility directive but it may cover operations involving grain processing that are outside the scope of the grain handling directive.

Learn more about OSHA and about combustible dust from OSHA.

OSHA Sets Sites on “High-Gravity” Violations

The agency reveals half a dozen areas of more intensive enforcement focus.

The U.S. Department of Labor announced Jan. 26 that its Occupational Safety and Health Administration has issued new enforcement guidance to make its penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.

OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance. These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping.

The change is intended to ensure OSHA personnel are applying the full authority of the Occupational Safety and Health Act where increased citations are needed to discourage non-compliance. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act.

“Smart, impactful enforcement means using all the tools available to us when an employer ‘doesn’t get it’ and will respond to only additional deterrence in the form of increased citations and penalties,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This is intended to be a targeted strategy for those employers who repeatedly choose to put profits before their employees’ safety, health and wellbeing. Employers who callously view injured or sickened workers simply as a cost of doing business will face more serious consequences.”

These changes in enforcement guidance are important enforcement tools to help deter employers from disregarding their responsibilities to protect workers and ensure compliance with OSHA standards and regulations.

Existing guidance on instance-by-instance citations are outlined in the OSHA Field Operations Manual, and CPL 02-00-080, “Handling of Cases to be Proposed for Violation-by-Violation Penalties.

Gas Stations Settle Harassment Suit for $400K

Letting this alleged harassment go unchecked cost the employer $80,000 per victim.

McDonald Oil Company has agreed to pay $400,000 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Wednesday.

McDonald Oil is a Georgia-based corporation that operates gas stations and convenience stores in Alabama and Georgia. According to the EEOC’s lawsuit, McDonald Oil ignored frequent complaints from multiple female employees and customers about ongoing sexual harassment by a male employee working for its Summit Food stores in Orange Beach and Spanish Fort, Alabama. The agency charged that multiple managers were aware of these complaints but failed to correct the hostile work environment, choosing instead to transfer the harasser to another store where he continued sexually harassing female employees.

Title VII of the Civil Rights Act of 1964 prohibits an employer from permitting a hostile work environment based on sex. The EEOC filed suit (EEOC v. McDonald Oil Company, Case No. 1:21-cv-00407) in the U.S. District Court for the Southern District of Alabama after its Mobile Local Office completed an investigation and attempted to reach a pre-litigation settlement through its voluntary conciliation process.

The EEOC’s lawsuit alleged that the harasser subjected female employees and customers to unwanted sexual touching, sexual comments about their bodies and questions about their sex lives. The agency further alleged that the harasser solicited co-workers for sex, repeatedly disrobed at work and circulated nude and semi-nude photos of himself that ultimately resulted in his criminal prosecution.

“An employer violates Title VII when it fails to correct sexual harassment by an employee,” said EEOC Birmingham District Director Bradley Anderson. “Transferring a harasser to work around other women without any corrective discipline does not correct a hostile work environment, it only exacerbates the problem by creating more victims. The EEOC is committed to ensuring that employers reasonably investigate and take meaningful corrective action when they learn of complaints of sexual harassment.”

Marsha Rucker, regional attorney for the EEOC’s Birmingham District added, “Ignoring numerous complaints about this harasser provided him more opportunity to continue his harassment and to ultimately escalate his conduct into actions that led to his arrest and criminal conviction. The EEOC will aggressively pursue remedies for victims of sexual harassment in the workplace.”

Under a three-year consent decree settling the suit, McDonald Oil will pay a total of $400,000 to five female employees who allege they suffered severe mental anguish and emotional distress stemming from sexual harassment in the workplace; revise its policies and procedures to prevent future incidents of sexual harassment; train its management on documenting and investigating sexual harassment complaints; and train employees on their right to work in an environment free from sexual harassment.

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

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

Dry Ice Mover Fined $19K in Driver’s Death

Passers-by seemed more interested in this employee’s welfare than did his employer.

In the summer of 2022, onlookers noticed a delivery truck stopped at about 8:15 a.m. one Wednesday morning on the University of Birmingham campus near what would have been the driver’s first drop-off. About two hours later, a passerby saw the driver slumped over and unresponsive.

After they smashed the window to remove the driver, campus police and medical responders were alerted. The 41-year-old woman found inside the truck was transported to a nearby hospital but later died.

A U.S. Department of Labor investigation into the July 20, 2022, tragedy has determined Malcolm Grant, the driver’s employer, might have prevented the death had the delivery service subcontractor implemented procedures for transporting and handling dry ice, and trained their employees of the dangers of hazardous chemicals.

The department’s Occupational Safety and Health Administration learned that the driver’s delivery truck contained 71 bags of dry ice that were loaded into coolers that could not be fully closed. Investigators determined the truck left the warehouse at approximately 7:40 a.m. and arrived at its first stop soon after.

OSHA issued citations to Grant for three serious violations, including exposing workers transporting dry ice to asphyxiation hazards from carbon dioxide gas, failing to establish and use a written hazard communication program for employees handling dry ice, and not providing delivery workers information and training on handling hazardous chemicals. The company faces $19,643 in proposed OSHA penalties.

OSHA also cited two serious violations to the company contracted for campus deliveries, Armstrong Transfer and Storage Co. Inc. The company, which operates as Armstrong Relocation Company, did not develop and use a written hazard communication program, and failed to maintain safety data sheets for hazardous chemicals, such as dry ice. Armstrong faces $13,394 in proposed OSHA penalties.

“Armstrong Relocation Company and its subcontractor, Malcolm Grant, failed to follow established safety procedures for handling hazardous materials and that failure claimed a worker’s life,” said OSHA Acting Area Office Director Lisa Strunk in Birmingham, Alabama. “This tragedy is an awful reminder of the dangers of asphyxiation that chemicals – such as carbon dioxide – present and how the use of appropriate protective measures might have saved a life.”

Located in Birmingham, Armstrong Transfer & Storage Co. Inc. is a moving, relocation and logistics company for commercial and residential customers with a workforce of about 1,000 employees nationwide. The company subcontracted Malcolm Grant, located in Tuscaloosa, a moving and delivery company.

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

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

Hear This: EEOC Updates Resource Document on ADA’s Application to Hearing Disabilities at Work

The EEOC has heard the call for more specifics on employer’s obligations toward persons with hearing impairments.

The U.S. Equal Employment Opportunity Commission (EEOC) on Tuesday released an updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions.

The document outlines how certain pre- and post-job offer disability-related questions can violate the ADA, describes easy-to-access technologies that can make providing a reasonable accommodation for a hearing disability free or low-cost, addresses employer concerns about safety, and shares realistic scenarios of potential discrimination. In addition to adding information about discrimination against job applicants, the updated document provides new or updated examples that reflect available technologies.

“Employers have a legal responsibility to create fair workplaces for all employees and job applicants who need reasonable accommodations,” said EEOC Chair Charlotte A. Burrows. “The practical questions and answers and realistic scenarios in this updated document will help educate employers on those responsibilities and employees about their rights.”

Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about their hearing. The document clarifies that discrimination may occur when employers act on unfounded assumptions that workers with hearing conditions will cause safety hazards, increase employment costs, or have difficulty communicating. The document also discusses harassment and retaliation.

OSHA Fines Amazon $60K for Safety Violations

We’ve heard stories anecdotally about the company’s flaws–now here’s proof.

The U.S. Department of Labor today announced that its Occupational Safety and Health Administration has cited Amazon for failing to keep workers safe, and has issued hazard alert letters after inspections at three warehouse facilities – in Deltona, Florida; Waukegan, Illinois; and New Windsor, New York – after finding workers exposed to ergonomic hazards.

Specifically, OSHA cited the company for violations of the general duty clause in the Occupational Safety and Health Act, which requires employers to provide safe workplaces. The agency also cited the company for exposing workers at the Florida warehouse to struck-by hazards. Similar investigations at three Amazon locations in Aurora, Colorado; Nampa, Idaho; and Castleton, New York, are ongoing.

The department’s actions follow referrals from the U.S. Attorney’s Office for the Southern District of New York, that led the agency to open inspections at Amazon warehouses in Deltona, Waukegan, and New Windsor on July 18, 2022; and in Aurora, Nampa and Castleton on Aug. 1, 2022.

OSHA investigators found Amazon warehouse workers at high risk for lower back injuries and other musculoskeletal disorders related to the high frequency with which workers are required to lift packages and other items; the heavy weight of the items; awkward postures, such as twisting, bending and long reaches while lifting; and long hours required to complete assigned tasks. OSHA also reviewed on-site injury logs required by OSHA and discovered that Amazon warehouse workers experienced high rates of musculoskeletal disorders.

Amazon faces a total of $60,269 in proposed penalties for these violations.

“Each of these inspections found work processes that were designed for speed but not safety, and they resulted in serious worker injuries,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “While Amazon has developed impressive systems to make sure its customers’ orders are shipped efficiently and quickly, the company has failed to show the same level of commitment to protecting the safety and well-being of its workers.”

“Our hope is that the findings of our investigations inspire Amazon and other warehouses to make the safety and health of their workers a core value,” Parker added.

In December 2022, OSHA cited Amazon for 14 recordkeeping violations as part of the same investigation.  

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

Burger King Operator Out $60K in Settlement of EEOC’s Sexual Harassment, Pregnancy Lawsuit

Justice will be had one franchise at a time, it seems.

North Georgia Foods, Inc., a Georgia-based company operating several Burger King restaurants, including one in Murphy, North Carolina, has agreed to pay $60,000 and provide other relief to settle a sex harassment, retaliation and pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced January 19.  

According to the EEOC’s complaint, from at least August 2018 through approximately July 2019, a team member at North Georgia Foods’ Murphy, North Carolina location was sexually harassed by a male assistant manager. The harassment included vulgar sexual comments, threatening behavior and unwelcome sexual touching. The team member complained multiple times and asked not to work alone with the male assistant manager. North Georgia Foods did not take action to stop the harassment but instead removed the team member from the schedule completely in June 2019. The company refused to communicate with the team member and later refused to reinstate her employment. The EEOC also alleged the team member was discriminated against because of her pregnancy.

This alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) which protects employees from sex-based harassment in the workplace. The EEOC filed suit (EEOC v. North Georgia Foods, Inc, d/b/a Burger King, Case No. 1:22-cv-00049) in the United States District Court for the Western District of North Carolina after first attempting to reach pre-litigation settlement via its voluntary conciliation process.

The suit was resolved by a two-year consent decree that prohibits North Georgia Foods from discriminating and retaliating against employees in violation of Title VII.  North Georgia Foods must also prominently post a telephone number for an off-site reporting official, revise its written anti-discrimination policies, and train employees on the process for reporting complaints of discrimination and the requirements of Title VII, including its anti-retaliation provisions.

“The outcome of this case demonstrates that employers who ignore complaints of sex-based harassment in the workplace or retaliate against employees for asserting their rights under Title VII will be held accountable,” said EEOC Regional Attorney Melinda C. Dugas. 

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. The EEOC’s Charlotte District is charged with enforcing federal employment discrimination laws in North Carolina, Virginia, and South Carolina.

More information is available about sexual harassment is available at https://www.eeoc.gov/sexual-harassment . 

School’s Out: Preschool Provider Pays $100K to Settle ADA Suit Over a Rejected Job Applicant

Another employer allegedly trips up over evaluating a job candidate under the ADA.

Excentia Human Services, also known as The Pai Corporation and the S. June Smith Center, will pay $100,000 and provide other relief to settle a disability discrim­ination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the federal agency announced January 19.

Excentia refused to hire a candidate for a preschool provider position because she has cerebral palsy, the EEOC charged. Although the candidate was qualified, and human resources staff sent her to the worksite after a successful interview, management rejected the candidate after meeting her and discovering that she has cerebral palsy, according to EEOC’s lawsuit.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits disability discrimination and requires employers to provide reasonable accommo­dations to individuals with disabilities unless it would cause undue hardship. The EEOC filed suit (EEOC v. The Pai Corporation d/b/a Excentia Human Services and d/b/a Excentia and S. June Smith Center, Case No. 2:21-cv-04273) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

The three-year consent decree issued by the court requires Excentia to pay $100,000 in back pay and compensatory damages, to adopt policies and procedures, and to provide training to ensure compliance with the ADA. The decree also requires periodic reporting, monitoring, and a process for reviewing future disability discrimination complaints.

“The ADA requires employers to evaluate persons with disabilities based on their actual ability to perform the job, with or without reasonable accommodation, and not on subjective perceptions, assumptions, or stereotypes about the nature or effect of a person’s disability,” said Debra Lawrence, regional attorney for EEOC’s Philadelphia District Office. “The EEOC will continue to enforce this crucial federal law.”

The Philadelphia District Office of EEOC oversees Delaware, Maryland, Pennsylvania, West Virginia, and parts of New Jersey and Ohio. The legal staff of the Philadelphia District Office of EEOC also prosecutes discrimination cases arising from Washington, D.C. and parts of Virginia.

For more information about disability-based discrimination please visit https://www.eeoc.gov/eeoc-dsaibility-related-resources.

Hospital Out $180K in ADA Settlement With EEOC Over Hiring, Accommodation of a Deaf Applicant

The employer dropped the ball on its ADA responsibilities, the government charged.

North Memorial Health, a health care provider that operates two hospitals and 26 specialty and primary care clinics, urgent and emergency care facilities and medical transportation services throughout the Twin Cities metropolitan area, will pay $180,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 13.

According to the EEOC’s lawsuit, in July 2020, North Memorial Health failed to hire an applicant who is deaf for a greeter position because of her disability and failed to provide her a reasonable accommodation.  The applicant was qualified for the position and could perform the essential functions of the job which included greeting visitors, applying COVID-19 masking standards and policies, giving directions and keeping the area tidy and welcoming, violated the Americans with Disabilities Act of 1990 (ADA), as amended, which requires the accommodation of employees’ and applicants’ disabilities and prohibits firing or refusing to hire an applicant due to their disability.

The EEOC filed suit in the U.S. District Court for the District of Minnesota (Equal Employment Opportunity Commission v. North Memorial Health, Civil Action No. 22-cv-777 (NEB/TNL)) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $180,000 in monetary relief, the two-year consent decree settling the suit requires North Memorial Health to revise its policies to state it will apply its disability anti-discrimination and reasonable accommodation policies to all applicants and employees hired to work at North Memorial Health, whether they are hired by North Memorial directly or through a staffing firm. The decree also requires North Memorial Health to include in all new contracts with staffing firms that provide contract or temporary workers, a provision that North Memorial Health will engage in the ADA interactive process when informed that an applicant or employee has requested an accommodation, and North Memorial will provide a reasonable accommodation unless doing so would result in an undue hardship or direct threat. North Memorial Health is also required to submit to the EEOC reports of complaints of failure to hire and failure to accommodate based on disability. North Memorial Health will also provide training to employees involved in the hiring process.

“Unfortunately, some employers continue to discriminate against deaf applicants based on myths, fears, and stereotypes about their ability to do the job because of their disability,” said EEOC Chicago District Office Regional Attorney Gregory Gochanour. “We are pleased that the consent decree requires North Memorial Health to now engage in the interactive process with all applicants including those sent via staffing firms and provide such applicants a reasonable accommodation as required under the ADA.”

Julianne Bowman, district director of the EEOC’s Chicago District, said “The consent decree’s requirement of training for managers and supervisors, involved in hiring decisions, on the ADA’s provisions against discrimination is critical to eliminating discrimination against disabled applicants.”

The EEOC’s legal team in its Minneapolis Area Office conducted the litigation under the management of the agency’s Chicago District Office. That office is responsible for processing charges of discrimination, administrative enforcement and litigation in Minnesota, North Dakota, South Dakota, Wisconsin, Illinois and Iowa, with offices in Milwaukee and Minneapolis.