Wyatt Employment Law Report


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Training for New Hazard Communication Standard Must be Completed by December 1, 2013

By Edwin S. Hopson

The Kentucky Labor Cabinet has issued a reminder to all Kentucky employers that by December 1, 2013, all employees who could be exposed to chemicals in the workplace are required by law to be trained on the label elements and safety data sheet format of the Globally Harmonized System of Classification and Labeling of Chemicals.

The system is an international approach to hazard communication involving businesses that regularly handle, store and use hazardous chemicals.

In a press release, Labor Cabinet Secretary Larry Roberts, stated: “[t]his affects nearly every industry in the Commonwealth.  If there are chemicals in the workplace, it’s almost certain that employees in that workplace will need to be trained under these new requirements by Dec. 1. Those employees have the right to know and understand these hazards and the precautions they need to take.”

The Kentucky OSH Program revised its Hazard Communication Standard in 2012, aligning it with federal OSHA’s standard.  This change also aligns the standard with the United Nations’ global chemical labeling system.

Federal OSHA has also set a December 1 deadline by which time the Hazard Communication training must be completed.

Employers who do not train the appropriate employees could face citations and monetary penalties.

For a fact sheet on the OSHA requirements see:

https://www.osha.gov/Publications/OSHA3642.pdf


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Department of Labor Issues Proposed New Rules Governing Whistleblower Proctections Under the Affordable Care Act

By Douglas L. McSwain

The interim Final Insurance Market Reform Rule under the Affordable Care Act (ACA) came out this past week, and included the employment non-discrimination/whistleblower protection provisions.  This rule could very well become one of the most litigious employment law developments in some time. Employers are prohibited from discriminating against any employee who complains in good faith that an employer is not providing healthcare coverage benefits in compliance with the ACA.  Employers and their insurers are also prohibited from discriminating against employees who participate in any complaint to a state or federal official about the perceived inadequacies of the employer’s coverage of health benefits, and, critically important, against any employee who chooses to go into the insurance exchange to purchase individual health coverage (thereby triggering, for any “large” employer, exposure to a tax penalty if it has failed to provide its employees “affordable” and at least 60% actuarially-valued, coverage). 

Employees may bring a complaint of discrimination (i.e., “blow the whistle” on an employer) within a 180-day limitations period by lodging an oral or informal written complaint (in letter-form or otherwise) with the U.S. Occupational Safety and Heath Administration (“OSHA”).  Under the new rule, reinstatement or front pay is available as remedies, as well as backpay, attorneys fees, expert fees, costs, etc.  If reinstatement is ordered, it must be done immediately pending appeal unless infeasible, in which event, front pay is awardable.  If a prima facie discrimination case is made out by an employee, the employer bears a “clear and convincing burden,” in effect, to disprove that any adverse employment action would have been taken in any event (interesting burden-shift here, and perhaps of questionable validity).  On the other hand, for frivolous or bad faith employee-filings, employers may be awarded up to, but no more than, $1,000 in attorneys fees against a frivolous-filing employee. OSHA filings are exhausted in the administrative setting before an Administrative Law Judge, and appeals are to the U.S. Court of Appeals. However, if a complaint remains unaddressed by OSHA for over 210 days, the case may be initiated by a filing in federal district court, subject to de novo review. 

These are significant developments in employment and employee benefits law. You may find the proposed new employment rules on the DOL’s website regarding the non-discrimination/whistleblower regulations: http://www.dol.gov/find/20130222/OSHA2013.pdf


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OSHA 300 Log Must Be Posted by February 1, 2013 For Many Employers

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2013 to April 30, 2013 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations. 

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code

Industry

525

Hardware Stores

542

Meat and Fish Markets

544

Candy, Nut, and Confectionery Stores

545

Dairy Products Stores

546

Retail Bakeries

549

Miscellaneous Food Stores

551

New and Used Car Dealers

552

Used Car Dealers

554

Gasoline Service Stations

557

Motorcycle Dealers

56

Apparel and Accessory Stores

573

Radio, Television, & Computer Stores

58

Eating and Drinking Places

591

Drug Stores and Proprietary Stores

592

Liquor Stores

594

Miscellaneous Shopping Goods Stores

599

Retail Stores, Not Elsewhere Classified

60

Depository Institutions (banks & savings institutions)

61

Nondepository Institutions(credit institutions)

62

Security and Commodity Brokers

63

Insurance Carriers

64

Insurance Agents, Brokers, & Services

653

Real Estate Agents and Managers

654

Title Abstract Offices

67

Holding and Other Investment Offices

722

Photographic Studios, Portrait

723

Beauty Shops

724

Barber Shops

725

Shoe Repair and Shoeshine Parlors

726

Funeral Service and Crematories

729

Miscellaneous Personal Services

731

Advertising Services

732

Credit Reporting and Collection Services

733

Mailing, Reproduction, Stenographic Services

737

Computer and Data Processing Services

738

Miscellaneous Business Services

764

Reupholstery and Furniture Repair

78

Motion Picture

791

Dance Studios, Schools, and Halls

792

Producers, Orchestras, Entertainers

793

Bowling Centers

801

Offices & Clinics Of Medical Doctors

802

Offices and Clinics Of Dentists

803

Offices Of Osteopathic Physicians

804

Offices Of Other Health Practitioners

807

Medical and Dental Laboratories

809

Health and Allied Services,Not Elsewhere Classified

81

Legal Services

82

Educational Services (schools, colleges,universities and libraries)

832

Individual and Family Services

835

Child Day Care Services

839

Social Services, Not Elsewhere Classified

841

Museums and Art Galleries

86

Membership Organizations

87

Engineering, Accounting, Research,Management, and Related Services

899

Services, not elsewhere classified


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President Obama Details Possible Cuts to Federal Spending under Budget Control Act of 2011

By Edwin S. Hopson

On September 14, 2012, the President’s Office of Management and Budget released a report on what the estimated impact of sequestration pursuant to Sequestration Transparency Act, as mandated by the Budget Control Act of 2011, would be on January 2, 2013, should the Congress not agree upon a budget or otherwise intervene prior to that time.  According to the report, it is estimated that, among other things, there would be a 9.4% cut in non-exempt defense discretionary spending and a 8.2% decrease in non-defense, non-exempt discretionary funding.  The nearly 400 page report details plans for cuts federal government spending amounting to some $1.2 trillion dollars.

In Appendix A to the report, the following agency cuts in selected labor/employment sectors are as follows:

U.S. Department of Labor Wage and Hour Division: $19 million

Occupational Safety and Health Administration: $46 million

Occupational Safety and Health Review Commission: $1 million

Office of Federal Contract Compliance Programs: $9 million

Equal Employment Opportunity Commission: $30 million

National Labor Relations Board: $23 million

These cuts, if implemented, would undoubtedly have significant impacts on these agencies.  It is assumed that each agency is preparing or has prepared contingency plans to deal with any such reductions in funding.


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OSHA 300 Log Must Be Posted by February 1, 2012

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2012 to April 30, 2012 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations. 

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code Industry
525 Hardware Stores
542 Meat and Fish Markets
544 Candy, Nut, and Confectionery Stores
545 Dairy Products Stores
546 Retail Bakeries
549 Miscellaneous Food Stores
551 New and Used Car Dealers
552 Used Car Dealers
554 Gasoline Service Stations
557 Motorcycle Dealers
56 Apparel and Accessory Stores
573 Radio, Television, & Computer Stores
58 Eating and Drinking Places
591 Drug Stores and Proprietary Stores
592 Liquor Stores
594 Miscellaneous Shopping Goods Stores
599 Retail Stores, Not Elsewhere Classified
60 Depository Institutions (banks & savings institutions)
61 Nondepository Institutions(credit institutions)
62 Security and Commodity Brokers
63 Insurance Carriers
64 Insurance Agents, Brokers, & Services
653 Real Estate Agents and Managers
654 Title Abstract Offices
67 Holding and Other Investment Offices
722 Photographic Studios, Portrait
723 Beauty Shops
724 Barber Shops
725 Shoe Repair and Shoeshine Parlors
726 Funeral Service and Crematories
729 Miscellaneous Personal Services
731 Advertising Services
732 Credit Reporting and Collection Services
733 Mailing, Reproduction, Stenographic Services
737 Computer and Data Processing Services
738 Miscellaneous Business Services
764 Reupholstery and Furniture Repair
78 Motion Picture
791 Dance Studios, Schools, and Halls
792 Producers, Orchestras, Entertainers
793 Bowling Centers
801 Offices & Clinics Of Medical Doctors
802 Offices and Clinics Of Dentists
803 Offices Of Osteopathic Physicians
804 Offices Of Other Health Practitioners
807 Medical and Dental Laboratories
809 Health and Allied Services,Not Elsewhere Classified
81 Legal Services
82 Educational Services (schools, colleges,universities and libraries)
832 Individual and Family Services
835 Child Day Care Services
839 Social Services, Not Elsewhere Classified
841 Museums and Art Galleries
86 Membership Organizations
87 Engineering, Accounting, Research,Management, and Related Services
899 Services, not elsewhere classified


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OSHA Announces That It Has Revised Its Compliance Assistance Materials

By Edwin S. Hopson

On October 17, 2011, the U.S. Occupational Safety and Health Administration (OSHA) announced that it had recently published new and revised information that explains workers’ and employers’ rights, as well as how to protect employees from hazards in the construction, general and maritime industries. To order free copies of these materials online you can go to OSHA’s Publications page at:

http://www.osha.gov/pls/publications/publication.AthruZ?pType=AthruZ#S,

or you can call OSHA’s toll free number at 800-321-6742 and request the materials.

Information on employers’ rights and responsibilities following an inspection are contained in a booklet entitled Employer Rights and Responsibilities. It explains what happens after an inspection, and discusses the types of violations for which an employer may be cited.

OSHA has also published information covering the construction, general industry and shipyard industries, and those who work outdoors.

       Laboratory Safety document and fact sheets (http://www.osha.gov/pls/publications/publication.athruz?pType=Industry&pID=117) advise laboratory managers on how to protect their workers from exposure to chemical, biological and physical hazards.

       Aerial Lifts Protect Yourself details measures employers must take to ensure safe use of aerial lifts by workers required to use this equipment.

       Aerial Lift Fall Protection Over Water in Shipyards QuickCard lists ways to protect workers using aerial lifts from injuries and death resulting from equipment failure, tip-over, falls and ejection.

       Permit-Required Confined Spaces in General Industry QuickCard explains what workers should do before entering a confined space, such as an underground vaults, tanks, storage bins, silos or manholes.

       Working Safely in Trenches QuickCard provides illustrations of protective systems that should be used to prevent worker injuries and death from trench cave-ins.

       Nail Gun Safety educates construction employers and workers on how to prevent work-related nail gun injuries.

       Protecting Workers from Heat Stress QuickCard and poster emphasizes the importance of employers providing workers with water, rest and shade to prevent workers from suffering heat illness, exhaustion and stroke.

Finally, OSHA’s Small Entity Compliance Guide for Respiratory Protection Standard provides small businesses with a comprehensive step-by-step guide complete with checklists and commonly asked questions.


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There’s An App For That!

By Michelle D. Wyrick

As we move into the dog days of summer, the Department of Labor (“DOL”) has announced its launch of a smartphone application that enables workers and supervisors to monitor the heat index at their work sites.  The app, which is available in English and Spanish, is supposed to help prevent heat-related illnesses.  It uses heat index data and the user’s location to provide information about precautions that workers may take, such as taking rest breaks, drinking fluids, and adjusting work operations.  The app also allows users to review the symptoms of heat-related illnesses, such as heat stroke and heat exhaustion, and to learn emergency first aid measures.  Workers can also use the app to contact the Occupational Safety and Health Administration directly.

The heat index app is the DOL’s second app for smartphones.  Its first, which was released earlier this year, enables employees to track the hours they work, their break times, and any overtime hours worked.  The DOL is exploring updates to this app that would permit employees to track other items such as tips, bonuses, commissions, deductions, and premium pay.