Wyatt Employment Law Report

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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.

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Proposed Legislation Make OSHA’s Voluntary Protection Program Permanent Introduced in Senate and House

By Edwin S. Hopson

On April 13, 2011, it was announced by Senator Mike Enzi (R), Ranking Member of the Senate Health, Education Labor and Pensions Committee, along with Senator Mary Landrieu (D.), who chairs the Senate Small Business Committee, that proposed legislation (S. 807) has been introduced to make permanent OSHA’s Voluntary Protection Program (VPP).  This OSHA initiative, first introduced in 1982, encourages employers to voluntarily incorporate a fairly rigorous program to improve workplace safety and health.  Currently, more than 2,500 worksites that cover approximately one million employees have VPP, which, it is estimated in a 2007 study, save some $300 million in the private sector and $59 million in the public sector in terms of workplace injuries avoided. Similar legislation (H.R. 1511) has been introduced in the House of Representatives by Representative Tom Petri (R.), senior Republican member on the Subcommittee on Higher Education and Workforce Training, along with Representative Gene Green (D).

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Proposed Budget Cuts Announced by House Appropriations Committee Chairman

By Edwin S. Hopson

On April 12, 2011, the House Appropriations Chairman, Hal Rogers, announced the proposed details of the nearly $40 billion in spending cuts agreed to last Friday for the remainder of fiscal year 2011.  Over the weekend, Rogers’ committee “went line-by-line” through each agency’s budget and came up with a detailed outline of where the cuts will take place.  See http://appropriations.house.gov

Labor, Education and related agencies are slated for a $5.5 billion or 3.36% cut from 2010 fiscal year spending levels, according to the Committee’s posting on its website.  This includes a reduction of $49 million for occupational safety and health.  In addition, all non-defense government accounts will be reduced by .2% across the board during the remainder of this fiscal year which ends September 30, 2011.

The legislation must now be voted on by both the House and Senate and signed into law by President Obama.


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“Spider-Man” Gets Poor Review From OSHA

By Edwin S. Hopson

On March 4, 2011, the U.S. Occupational Safety and Health Administration (OSHA) announced in a press release that it had issued a citation against “8 Legged Productions LLC”, the production company putting on “Spider-Man Turn Off the Dark” at the Foxwoods Theater in New York City.  OSHA asserts that three serious violations occurred involving several cast members who were injured on September 25, October 19 and December 20, 2010.  The hazards referenced were falls, being struck during flying routines and unguarded open-side floors lacking fall protection.  Also, it is alleged that the company failed to shield employees from being struck by overheard rigging components that were moving.

OSHA has proposed a total of $12,600 in fines.  The company has fifteen business days from receipt of the citation to file a notice of contest.

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NPR Reports that House Seeks Major Cut in OSHA’s Current Budget

By Edwin S. Hopson

On March 1, 2011, National Public Radio reported on its website that Republicans in the U.S. House of Representatives are trying to cut about $99 million in federal spending in the current fiscal year from the budget for the U.S. Occupational Safety & Health Administration (OSHA).  According to OSHA Administrator David Michaels, the proposed a 20% cut as applied to the remaining months of the fiscal year ending September 30, 2011, actually amounts to a 40% reduction in OSHA’s budget for the period covered.  Michael’s says this would have a devastating effect on his agency’s activities during the next 6-7 months.

House Republicans have claimed that OSHA’s recent stepped enforcement activities threaten jobs and focuses too much on “punishment [rather] than prevention.”  At a recent hearing on the issue, the chairman of the House Subcommittee on Workforce Protections, Michigan Republican Tim Walberg, questioned the agency’s priorities.

NPR quotes OSHA Administrator Michaels as countering with:  “[w]e know that OSHA doesn’t kill jobs. It stops jobs from killing workers. When employers embrace safety, they actually save money.”

Peg Seminario, the safety and health director of the AFL-CIO, is also quoted by NPR: “[w]e now have a much bigger workforce than we had 40 years ago when OSHA was started.  But they would propose to slash the agency, slash enforcement, slash standards-setting, leaving the agency essentially crippled and unable to do its job to protect workers.”

The U.S. Senate now has to take up the House-passed cuts and, along with the President, has to come to some agreement with the House to avoid a government shutdown.

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U.S. Department of Labor’s New Website Features

By Mitzi D. Wyrick

What does your Department of Labor (“DOL”) company profile look like? Did you know that the DOL has recently made its online enforcement database searchable and available to the public? In an effort at greater transparency, the DOL has posted its compliance and enforcement audit results online. Results are searchable in a variety of ways, including by zip code, by company, by state, or by industry sector. This means a company’s wage and hour, OSHA, OFCCP, and EBSA audit results are now available to attorneys, unions, and even other agencies, such as the EEOC. The database is available at: http://ogesdw.dol.gov/index.php

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OSHA Withdraws Proposed “Interpretation” Regarding its Noise Standard

By Edwin S. Hopson

On January 19, 2011, the U.S. Occupational Safety and Health Administration announced that it was withdrawing its proposed interpretation titled “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.”  The interpretation had been intended to clarify the term “feasible administrative or engineering controls” as used in OSHA’s noise standard so as to emphasize its preference for engineering and administrative controls as opposed to personal protective equipment such as ear plugs. 

OSHA’s noise standard specifies that feasible administrative or engineering controls must be used to reduce noise to acceptable levels and that personal protective equipment, such as ear plugs and ear muffs, must be used only as supplements when administrative or engineering controls are not completely effective.  The preference for engineering and administrative controls, although typically more expensive for the employer, as opposed to personal protective equipment, was according to OSHA consistent with the approach taken in all of its health standards and is reflective of the fact that such controls are generally more effective. 

Under the agency’s current enforcement policy, however, the agency issues citations for failure to use engineering and administrative controls only when they cost less than a hearing conservation program or when use of personal protective equipment would be ineffective.  Indeed, OSHA has allowed many employers for some time to rely upon a hearing conservation program, including the use of hearing protectors such as ear plugs. 

The proposed interpretation was originally published in the Federal Register on Oct. 19, 2010.  Prior to making the withdrawal announcement, OSHA Administrator Michaels met earlier this month with the personnel from the offices of Sen. Olympia Snowe and Sen. Joseph Lieberman, members of the Senate Committee on Small Business and Entrepreneurship, in response to a letter from the senators voicing concern over the cost of the change in enforcement emphasis and the agency’s failure to utilize the normal rule-making process. Sens. Snowe and Lieberman are also co-chairs of the Senate Task Force on Manufacturing.

 In an effort, however, to address exposure to excessive noise in the workplace, OSHA also announced that it will:

       –Conduct a thorough review of comments that have been submitted in response to the Federal Register notice and of any other information it receives on this issue.

       –Hold a stakeholder meeting on preventing occupational hearing loss to elicit the views of employers, workers, and noise control and public health professionals.

       –Consult with experts from the National Institute for Occupational Safety and Health, and the National Academy of Engineering.

       –Initiate a robust outreach and compliance assistance effort to provide enhanced technical information and guidance on the many inexpensive, effective engineering controls for dangerous noise levels.