In a January 23, 2015 letter to the U.S. Occupational Safety and Health Review Commission (“Review Commission” or “OSHRC”), the agency that adjudicates contested OSHA citations, several unions, including the National Council for Occupational Safety and Health (National COSH), North America’s Building Trades Unions (Building Trades), Change to Win and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Steelworkers) petitioned the Review Commission to amend its procedural regulations.  These four entities petitioned the Review Commission to amend various procedural regulations, including amending the definition of “affected employee,” clarify that employees may select any person as their representative and narrow the scope of confidential information during settlement proceedings. According to the petition, “[e]ach of the suggested changes would enhance opportunities for employee participating in OSHRC proceedings.”

Employees currently have several abilities to participate in Review Commission proceedings.  Under current procedural regulations, both authorized employee representatives, employees of the cited employer represented by a labor organization, and affected employees, employees of the cited employer may elect party status. 29 C.F.R. § 2200.20.  So current regulations allow both union represented employees and non-union employees of the cited employer to participate in proceedings. Further, similar to federal and state courts, non-parties, such as unions without a collective bargaining agreement with the cited employer, may petition the Review Commission for leave to “intervene” or otherwise participate in the proceedings without permission from the parties to the case.  29 C.F.R. § 2200.21.

In its petition, the unions allege that “employees do not exercise the rights they have been given under the OSH Act….One reason employees often do not exercise their right to participate in OSHRC proceedings is that the Commission’s procedural rules, at least the way they have been applied, create unreasonable obstacles to full employee participation.”

In an effort to address these “obstacles” the petition requests the Review Commission to redefine the definition of “affected employee.”  Rather than limit the affected employee to the cited employer, the petition suggests that an ““affected employee” should be any employee who performs work at the site.”  Therefore, any employee at a multi-employer worksite could choose to participate in the proceedings even if the citations do not pertain to his/her employer.

Further, the petition requests that the Review Commission clarify that employees may select any person as their representative.  It is unclear from the petition what needs to be clarified given that the current regulations allow parties to proceedings to be represented by an attorney “or through another representative who is not an attorney.” 29 C.F.R. § 2200.22.

Lastly, the petition urges the Review Commission to “narrow the scope of confidentiality during settlement proceedings.”  The petition suggests that the confidentiality of information presented during settlement proceedings is too broad and essentially prohibits employees who are a party to a proceeding from “communicating with the public in their efforts to improve their working conditions.” Under current procedural regulations, “all statements made and information presented during the course of settlement proceedings…shall be regarded as confidential and shall not be divulged outside of these proceedings.”  29 C.F.R. § 2200.120(d)(3).  Confidentiality of settlement proceedings encourages all parties to engage in open and free discussions about the merits of the case as well as abatement for the alleged citations.

There has been no indication from the Review Commission how, if at all, the Agency will respond to the petition.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

New High Reached in MSHA Discrimination Complaint Filings. The number of discrimination complaints MSHA has filed on behalf of miners reached a new high last year.

Consider Non-Regulatory Alternatives, Small Business Panel on Infectious Diseases Tells OSHA. A majority of representatives on a small business panel convened by OSHA to hear their views on a potential OSHA infectious diseases rule questioned the need for such a rule, but said that if OSHA proposes a regulation for healthcare and related workers, it should consider risk on a sector-by-sector basis and tailor the rule accordingly.

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OSHA is coming under criticism because of changes it has made to its Safety and Health Achievement Recognition Program (SHARP).  The details were outlined in a memorandum to Regional Administrators dated November 24, 2014.  However, opponents to the changes are upset because the memorandum was not posted on OSHA’s website and the decision to limit the size of employers who are eligible for the SHARP program is being viewed as a disincentive for employers to participate in the program. In addition, states with approved State Plans are required to implement the new consultation procedures.

The November memorandum references the size requirements outlined in the Consultation Policies and Procedures Manual (CPPM) Ch. 8, II for employer eligibility:

The size requirements for participation in SHARP are employers with 250 or fewer onsite employees and fewer than 500 corporate-wide employees.

Enforcing these size limits reverses a February 2012 memorandum in which OSHA allowed employers who did not meet the size requirements to nonetheless be considered for the program with prior approval from the Regional Administrator or State Designee.   In its’ November 24, 2014 memorandum, OSHA states that the reasoning behind this flexible approach was “to consider for SHARP the subsidiaries of larger companies that did not receive adequate support from their parent company for establishing a safety program.”

One of SHARP’s appeals is that participation is free and companies meeting all the eligibility requirements are exempt from programmed OSHA inspections for 2 or 3 years.  The first step in the program is for an employer to request a visit from an OSHA-approved consultation service which then inspects the worksite and any hazards identified during that inspection must be corrected by the employer.  On-Site Consultation Projects and the employer work collaboratively to assist the employer in meeting SHARP standards.  The amount of time required to successfully operate On-site Consultation Projects has led OSHA to the conclusion that it needs to tailor the program by concentrating its focus on small businesses.  According to the memorandum, OSHA “is therefore implementing a more definitive interpretation of the Employer Eligibility requirements.”   Although companies with more than 500 corporate-wide employees are now exempt from participating in the program, this does not include individual franchisees which are not owned by the corporation but are operated as distinct corporate entities.

OSHA has come under further fire because the memorandum applies retroactively.  Companies who are no longer eligible for SHARP will not be grandfathered-in but will instead be encouraged to participate in the Voluntary Protection Program (VPP) which is an alternative cooperative program offered by OSHA aimed at large employers.  Employers wishing to participate in VPP undergo a vigorous evaluation but may also be exempt from programmed OSHA inspections while they maintain VPP status.  OSHA has defended its position, but it also recognizes that it takes time to apply for VPP and the changes to SHARP will result in a backlog.  In a conciliatory move, OSHA is allowing companies who until recently were eligible for SHARP to remain in the program while they await completion of their VPP evaluation, provided they submit their application within a year of the November 2014 memorandum and also that they continue to meet other eligibility requirements.  To learn more about VPP, see https://www.osha.gov/dcsp/vpp.

Starting January 1, 2015, the process for abatement of California OSHA (“Cal-OSHA”) citations changed.  In short, the new law, A.B. 1634, signed by California Governor Jerry Brown in September 2014, prohibits Cal-OSHA (“the Division”) from making penalty modifications to citations unless the alleged violation has been abated and requires employers to abate citations during the second phase of an appeal of citations.

Under the new law, where the Division issues serious citations, the Agency is prohibited from making modifications to penalties unless the employer has done one of the following:

• Abated the violation at the time of the inspection.
• Abated the violation at the time of a subsequent inspection prior to the issuance of a citation.
• Submitted a signed statement under penalty of perjury and supporting evidence, when necessary, proving the alleged violation has been abated within 10 working days after the date fixed for abatement.

More importantly, for uncontested citations, if an employer fails to provide a statement and evidence of abatement within the 10 working days after the end of the abatement period, the Division can add additional civil penalties for the failure to abate.  These additional penalties for failing to abate would be applied retroactively to the end of the abatement period. Additionally, if employers have not provided evidence of abatement within 45 days following the end of the abatement period, the Division will conduct a re-inspection for any serious violations.

Prior to January 1, 2015, if an employer elected to contest a citation, the abatement of that citation was stayed pending a decision by an Administrative Law Judge (“ALJ”) and pending any additional appeals, such as a Petition for Reconsideration of a Decision.  That is, the ALJ Decision was unfavorable to the employer and the employer wanted to appeal again to the California Appeals Board (“Appeals Board”).  Under A.B. 1634 the Petition for Reconsideration will not automatically stay the abatement of the violations while the case is before the Appeals Board.  Abatement will only be suspended for 10 days once a Petition for Reconsideration is filed.  Thereafter, employers can petition the Appeals Board to stay the abatement pending the reconsideration of the ALJ decision.  Such petitions will only be granted by the Appeals Board where employers can demonstrate that a stay or suspension of the abatement will not adversely affect the health and safety of employees.

While there are no current federal laws that prevent workplace bullying in the private sector, “Healthy Workplace” bills have been introduced in 26 states since 2003.  Tennessee recently became the first state to pass the “Healthy Workplace Act,” a law designed to encourage public sector agencies to create an anti-bullying policy that addresses “abusive conduct” by making the agencies immune to bullying-related lawsuits if they adopt a policy that complies with the law. 

More recently, California passed a workplace anti-bullying law for private-sector employers that became effective on January 1, 2015.  California’s A.B. 2053 requires employers with 50 or more employees that already provide training on preventing sexual harassment to include new training on preventing “abusive conduct” in the workplace to supervisory employees.  It is likely that other states will follow suit and pass their own “Healthy Workplace” bills in the coming years as anti-bullying continues to trend in the news and become a focus in the workplace.

Statistics show bullying in the workplace may be a real problem, with 65.6 million U.S. workers being affected by it.  According to 2014 National Survey conducted by the Workplace Bullying Institute, 27 percent of U.S. workers reported that they had experienced abusive conduct at work and 21% of U.S. Workers have witnessed abusive conduct of others at work.

The 2014 National Survey uncovered that most employees do not think that their employers do enough to address workplace bullying:

•     25% of employees’ surveyed asserted that employers deny that bullying and harassing conduct takes place and fail to investigate complaints

•     16% asserted that employers discount bullying or describe it as non-serious

•     15% asserted that employers rationalize it by describing the bullying as innocent

•     11% asserted that employers defend abusive conduct when the perpetrators are executives and managers

Only 12% of employees’ surveyed found that their employers took steps to eliminate bullying by creating and enforcing certain policies and procedures.  The perceived failure from employees and state lawmakers that employers are adequately addressing workplace bullying may be one reason for the recent passage of anti-bullying laws in Tennessee and California and the introduction of similar bills in other states. 

Under Tennessee’s Healthy Workplace Act, “abusive conduct” is broadly defined as acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, such as: (A) Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) Verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or (C) The sabotage or undermining of an employee’s work performance in the workplace.

California’s A.B. 2053 similarly defines “abusive conduct” very broadly.  “Abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  It may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  The Act recognizes that a single act shall not constitute abusive conduct, unless especially severe and egregious.

While California and most other states do not provide a private right of action for an employee to sue for workplace bullying, bullying at the workplace – that goes unchecked – can result in negative consequences, such as decreased productivity and efficiency, increased absenteeism, loss of morale, increased resignations or transfer requests, and increased hotline calls and internal complaints.   It may also result in employees suing their employers for harassment or a hostile work environment based on a protected class, such as race and gender under Title VII of the Civil Rights Act of 1964 or for tort liability claims, such as negligent hiring or intentional infliction of emotional distress.

Thus, employers would be well-advised to manage this risk and develop a stronger workplace conduct policy now.  To address the potential for workplace bullying and the possibility that states will follow Tennessee’s and California’s lead in regulating workplace bullying, employers should analyze the workplace culture for incidents or prevalence to bullying and develop a workplace bullying prevention program.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Hydraulic Oil Poses Greater Fire Risk than Motor Oil, Judge Says. A judge has upheld four MSHA citations against an operator involving hydraulic oil leaks on mobile equipment, but dismissed four identical violations involving accumulations of combustible motor oil materials because, under the circumstances, their locations did not present a fire hazard.

OSHA Issues Alert on Non-Silica Fracking Hazards. OSHA has issued an advisory on non-silica health and safety hazards in the hydraulic fracking industry.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.