OSHA: Getting More Aggressive Under President Obama Joseph P. Paranac, Jr. One Riverfront Plaza, 16th Floor 1037 Raymond Boulevard Newark, New Jersey 07102 [email protected] (973) 491-3570

Andrew W. Daniels One International Place, 11th Floor Boston, Massachusetts 02110 [email protected] (617) 502-8216

Important for HRCI Credits  You must be logged in individually both via computer and via the teleconference for the duration of the event in order to qualify for the credits. (Sometimes two attendees will share an office and watch together – that will only allow credit for the person who logged in.  If you are not, please login now individually to appear on the attendance report.  At the end of the seminar, send an email to [email protected] if you need the HRCI certificate. It will be sent after confirmation of attendance.  We do not have the program number yet for the HRCI, so it may be a few days before the certificate is sent.

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Today’s presenters and some notes...

Joe Paranac Newark

Andrew Daniels Boston

Welcome. With the high number of attendees, please note all lines have been muted for the event. Q&A can be posted at the right of your screen, but any questions (time permitting) will be addressed at the end of the event. If using Q&A – please send to both the host and the presenter. You can send direct questions (including request for copy of slides) to [email protected] with OSHA Slides in the subject for reply after the event. 3

OSHA In The Obama Administration

FY 2008

FY 2009

FY 2010

Funding $494,641,000 FTE 2,097

$513,042,000 2,147

$563,620,000 2,368

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OSHA In The Obama Administration What to Expect More inspections More citations and increased penalties Review of Field Office Manual and “OSHA Listens” Less OSHA informal complaints Less willingness to negotiate as to penalties, classification, abatement methods or vacation of citation • More difficulty in obtaining settlements and, as a result, more contests • More national, regional and local emphasis inspection programs

• • • • •

(i.e., Process Safety Management Refineries & Chemical Plants, Cranes and Derricks, Recordkeeping, Trenching).

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OSHA In The Obama Administration What to Expect (cont’d.) • Attempted dilution or elimination of unpreventable employee misconduct defense • More focus on possible criminal referrals or collaboration with EPA and other agencies • Greater use of incident-by-incident (egregious) citation approach • Increased scrutiny of employer injury and illness recordkeeping and reporting

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OSHA And The Obama Administration What to Expect (cont’d.) •

Increased rulemaking/regulations 1. Cranes and derricks 2. Global harmonization of chemicals 3. Combustible dust 4. Walking and working surfaces 5. Electrical/PPE 6. Silica and Beryllium 7. Confined spaces in construction 8. Cooperative agreements 9. Occupational exposure to food flavorings 10. Ergonomics 11. Safety and health management system standard 12. PEL update

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New OSHA Legislation •

Protecting America’s Workers Act (S 1580 and HR 2067) 1. 2. 3. 4. 5. 6. 7.

Expands coverage – public sector employees Increases penalties – civil and criminal Expands whistleblower coverage Expands fatality or serious injury investigation Prohibits unclassified citations Expands victims’ rights Expands employee and union rights

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New OSHA Legislation Corporate Injury, Illness and Fatality Reporting Act (HR 2113) •

Employers with more than one establishment and 500 or more

employees must accurately report to DOL on the numbers and rates of work-related deaths, injuries and illnesses at all worksites • Reports due no less than once a year • Currently, companies are not required to report injuries unless 3 or more employees are sent to the hospital for a work-related event. This bill would, for the first time, mandate that all injuries be reported.

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OSHA In The Obama Administration What To Do Going Forward • Evaluate risks at worksites, especially multi-employer safety issues • Prepare to handle OSHA inspections • More focus on employee training and documentation • Review company recordkeeping • Focus on PPE standard requirements • Focus on evacuation plans and emergency response

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Achieving Operational Excellence Through Safety Companies with an effective safety and health management systems demonstrate the economic power of safety and health • U.S. Postal Service – 50% lower workers’ compensation costs • Lockheed Martin – 87% lower workers’ compensation costs • C.R. Meyer – 60% lower injury and illness rates than industry average • Valero Energy – 64% lower TCIR • International Paper – 69% lower injury rate than industry • GE Plastics – 77% drop in injury/illness rate • Welco Lumber Mills – 96% drop in workers’ compensation costs; 28% rise in production 11

The Elements Of An OSHA Inspection The Knock at the Door The Opening Conference The Walk-Around The Closing Conference 12

Throughout the Entire Inspection ALWAYS Remember • It is your facility • You have rights… – Inspection conducted in a reasonable manner – Inspection conducted during a reasonable time

• Completion of inspection within 6 months • Be cooperative and responsive but maintain control of the inspection

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Maintaining Control • Includes determining before an inspection… – What OSHA standards are applicable – Do you comply? – Previous OSHA Citations – Are they all corrected? – Will you require a warrant from OSHA? – Assure support staff (receptionists, secretaries, guards, etc.) are trained. – Know what to say when government is at your door. – Who is the right company person to contact, including your OSHA Counsel? 14

Whistleblower Protection  OSHA Act prohibits any person from discharging or in any manner retaliating against any employee because the employee has exercised rights under the Act  OSHA administers the whistleblowing provisions of sixteen other statutes, protecting employees who report violations of various laws regarding: • Trucking • Rail • Airline • Environmental • Nuclear power • Consumer Protection • Pipeline • Securities 15

Recent Whistleblower OSHA Orders  Tennessee Commerce Bank  e-Smart Technologies  New Jersey Transit

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Whistleblower Protection  Sarbanes-Oxley provides protection to workers who provide information or assist with an investigation of: • Mail, wire, bank or securities fraud • Violations of rules or regulations of the Securities and Exchange commission • Federal laws relating to fraud against shareholders 17

Tennessee Commerce Bank  George Fort, CFO of TCB  Mr. Fort was the SOX and SEC compliance officer for the bank

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Tennessee Commerce Bank  Mr. Fort refused to sign the 10K statement because of his concerns about: • • • • • •

Internal controls Irregularities with employee accounts Insider trading Wire transfers Check kiting Fabrication of Asset Liability Committee meeting minutes 19

Tennessee Commerce Bank  Mr. Fort took his concerns to the bank’s audit committee  CEO told Mr. Fort that “it would not be a good idea to go to the audit committee”  Mr. Fort (and his personal counsel) determined the bank’s audit committee was not adequately investigating his concerns and advised the bank he intended to meet with the FDIC 20

Tennessee Commerce Bank  After Mr. Fort met with the FDIC, he was placed on administrative leave • Was denied access to the bank’s computers • Was prevented from assisting with the investigation of his concerns by independent auditors

 Mr. Fort was ultimately terminated by TCB 21

Tennessee Commerce Bank  Mr. Fort filed a complaint with OSHA alleging the bank retaliated against him for taking action protected under SOX  OSHA determined the temporal proximity of the adverse actions to Mr. Fort’s protected activity, culminating with his meeting with the FDIC, creates a strong inference of retaliation by the bank 22

Tennessee Commerce Bank  OSHA ordered Mr. Fort to be reinstated and to be reimbursed his back pay, interest and fees, amounting to over $1 million  In the past, workers have rarely won retaliation claims filed with OSHA

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e-Smart Technologies  Whistleblower investigation conducted by OSHA's regional office in San Francisco under the whistleblower protection provisions of the Sarbanes-Oxley Act  Investigation substantiated • Employee questioned the accuracy of several statements made in the company's Securities and Exchange Commission filings • Employee’s job duties were systematically removed and his paychecks were delayed and ultimately stopped 24

e-Smart Technologies  OSHA ordered e-Smart Technologies Inc. to: • pay back wages, interest and compensatory damages totaling approximately $600,000 • reinstate the whistleblower to his former position • post notices in the workplace about whistleblower protection 25

New Jersey Transit  Railroad disciplined an employee for missing work after suffering a work-related illness from witnessing a fatal accident involving another worker  The railroad cut the employee's pay and then suspended him  OSHA's Whistleblower Protection Program conducted an investigation under the whistleblower provisions of the Federal Railroad Safety Act 26

New Jersey Transit  OSHA ordered New Jersey Transit to: • expunge disciplinary actions taken against the employee from his employment records • compensate the worker for back pay, lost benefit payments, interest, compensatory damages and attorneys' fees totaling almost $500,000 • pay the complainant $75,000 in punitive damages. • post and provide its employees with information on their FRSA whistleblower rights

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Enhanced Whistleblower Protection  2009 Government Accountability Office report stated that only 21% of whistleblower complaints to OSHA led to an outcome that was favorable to the whistleblower  The Obama administration has committed to improving these results

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Mitigating Whistleblower Risk  Develop an anti-retaliation policy and enforce it  Facilitate anonymous reporting (avoids knowledge of the employee) • Hotline • Written complaints • Third-party vendors

 Conduct a thorough investigation  Apply discipline consistently 29

National Emphasis Program on Recordkeeping  OSHA initiated a National Emphasis Program on recordkeeping of workplace injuries and illnesses  In response to several recent academic studies asserting general under-recording of workplace injuries and illnesses by employers 30

National Emphasis Program on Recordkeeping  Establishes procedures to inspect the accuracy of occupational injury and illness data recorded by employers  Inspections consist of three main parts: • an extensive records review • a limited “walkaround” safety and health inspection of the workplace • interviews of: – – – –

management representatives the employer’s designated record keeper medical/first-aid staff a sample of employees likely to be injured

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“Low-rate” Establishments in “High-rate” Industries         

Animal (except poultry) slaughtering Scheduled passenger air transportation Steel foundries (except investment) Other nonferrous foundries (except die-casting) Concrete pipe manufacturing Soft drink manufacturing Couriers Manufactured homes (mobile home) manufacturing Rolling mill machinery and equipment manufacturing

         

Iron foundries Nursing care facilities Fluid milk manufacturing Seafood canning Marine cargo handling Copper foundries (except diecasting) Bottled water manufacturing Refrigerated warehousing and storage Mobile vehicle seating and interior trim manufacturing Pet and pet supply stores

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National Emphasis Program on Recordkeeping  Documents inspected • • • • • • • •

OSHA 300 Logs for 2007 and 2008 First-aid reports Company accident reports Absentee records Employee payroll records Alternate duty rosters Insurance records Company policies pertaining to injury and illness reporting

 OSHA is to issue appropriate citations and penalties when inspections under the Recordkeeping NEP reveal OSHA recordkeeping violations

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New Crane Rules  OSHA finalizing rules addressing crane operation hazards  One of the largest overhauls of current safety regulations  Modifies the rules from just a few pages of regulations to 250 pages in the Federal Register  Owners of two New York crane and rigging companies are currently under indictment for manslaughter 34

Green Industries  Dr. David Michaels, Asst. Secretary of Labor for Occupational Safety and Health • Weatherization and renovation – exposure to lead and asbestos • Insulation – isocyanate exposure • Rooftop solar installations – fall hazards • Windmill maintenance – lock-out hazards

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Questions?

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Next Webinar in May  "California Discrimination/Harassment Laws -- Federal Law on Steroids."  Even if you’re not a California business, this might be of interest if you work with Calif. sub-contractors PLUS other states have enacted or propose similar statutes.  Look for the invitation to be distributed very soon. 37

Thank You

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Disclaimer  This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation.  This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation, and the recipient.  Copyright 2010 LeClairRyan, A Professional Corporation. All rights reserved.

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