Keeping the Enemy from the Gates: Preventing an OSHA Visit

The best way to prevent an OSHA is to never have an accident and never have a recordable injury. Actually the best way is to not have a company... but short of that here are my tips on how you can make your work environment a MUCH safer place.

• Realize that safety is an ATTITUDE THAT STARTS AT THE TOP! Key executives must have an awareness of safety and enforce safety as a priority. If they do not then why should anyone else down the line. If employees see an executive, the plant manager, the department manager, the shift supervisor or the HR representative walk past an unguarded machine, a discharged fire extinguisher, a wet spot on the floor or any other safety hazard and not do anything about it then a BIG "I DON'T CARE" has been broadcast. A good safety program will pay for itself in reduced workers' compensation claims. So $$$$ to the bottomline may help foster the attitude. But if that doesn't work you can make your executives realize that they may now be held personally liable for safety violations that cause injury or death and pay hefty fines and go to jail. In jail most executives would not be on the top rung of the ladder, more likely they would be Bubba's b***h.
• Have a good, well trained, active Safety Committee. This committee would typically have someone from each department who could report on safety issues for their department. Education is important. They need to understand the safety issues involved with the work they do so they can accurately report what needs to be corrected. Make sure whoever is in charge of maintenance is on this committee. Much of what needs to be worked on involves the maintenance department. Have the committee also trained to watch for unsafe acts of fellow employees. Ideally they would also be empowered to point out these acts as they occur, but "politics" may hinder that. So have a method for them to report these violations. It is a good idea to periodically rotate new members onto the safety committee. The good thing about this is that eventually everyone receives safety training.
• Conduct periodic inspections. When I was with Printpack the HR Manager conducted a monthly safety inspection. If you have no one trained to do this, correct it. Also, many industry associations or insurance companies will have a risk management or safety professional that can be enlisted to do annual or semi-annual inspections. Even if you have no one trained, managers and supervisors using common sense can do periodic inspections. The major issue in conducting inspections is to be committed to correcting errors found. If you don't make corrections and then later have a major loss the record of your inspections that went unheeded can work against you. A resulting "willful" violation may be the result. Also, follow up each accident with an investigation.
• Know and abide by the OSHA standards. This is particularly true of the recordkeeping and training requirements. The law requires that you keep records up to date of accidents, illnesses, lost-time injuries, and the training that people have received. If an OSHA inspector walks in the door these records are often the first thing they review. If they are not up to date you receive a violation and it goes downhill from there. OSHA Compliance Guide 18e, available from Amazon, can provide you with some guidance. Additionally, the if you belong to an industry association you may be able to get guidance specifically applicable to your company.
• TRAIN, TRAIN, TRAIN! Train your managers and supervisors, but also train your employees. The training that is necessary is not only on how to safely conduct their work, but also on what their rights and responsabilities are regarding safety. They need to know where the posters are, they need to know what they say (thus you may need to translate them) and they need to know where the OSHA 300 Log is posted. If you are ever inspected they may be asked these questions by the inspector. There are many safety regulations that require periodic training renewal, such as forklift training. Or the Hazard Communication program, which requires retraining every time a new material is added. Yeah, I know it can be a pain in the butt, however, it will save money in the long run. More importantly it may save someone's life. The result of an accident investigation makes a great training lesson.
• DISCIPLINE, DISCIPLINE. Correcting machinery issues does not eliminate safety problems. People still do stupid things. Unsafe acts need to be corrected immediately, and in some cases harshly in order to send a message. Do not let employees become habitual violaters, it will end up costing them and you in the end. I have had to pull people from machinery as a result of "short cuts" that were unsafe acts. Document these disciplinary actions.

Jared Shelly, of Human Resource Executive magazine published a post yesterday (not sure if mine on the New Sheriff in Town was the inspiration) that dealt with OSHA. If you want a further take on this you can read his post at Preparing for Stepped-Up Enforcement. 

Safety is not just for industrial sites. Office safety is critical as well. OSHA will be putting a new emphasis on ergonomics and muscular-skeletal disorders. So proper lifting, sitting and working methods are important. I have seen serious back injuries from lifting boxes and I have seen fingers cut off in papercutters. 

To conclude SAFETY IS AN ATTITUDE AS MUCH AS AN ACT. Keeping people safe is critical. There is nothing worse than having to face a family and having to explain why their loved one is hurt or not coming home. If you want to bring that home watch the news about the mine disaster. I would not want to be an executive in that company.  

OSHA: "A New Sheriff In Town"

In a speech to the American Bar Association in March 2010, Assistant Secretary of Labor for Occuaptional Safety and Health, David Michaels said "I know that by now you've all heard Secretary Solis describe DOL under this Administration as the "new sheriff in town." This is not an abstract wish; it is a stern description of how OSHA is now working - and I take this phrase seriously."


OSHA has taken a much more intense and "gonna get you" approach to dealing with employers. Michaels went on to further comment "First and foremost, we will emphasize strong enforcement - as evidenced in our record-breaking $84.7 million citation against BP Texas City, and the sharp increase in our egregious cases." He then added "If the threat of a fine isn't enough, we have other ways to drive home the point that employers need to obey the law." (My emphasis). To emphasis the point he stated "...we conducted the first-ever vehicle seizure in an OSHA whistleblower case..."
 
According to attorneys at Seyfarth Shaw much of what OSHA administers may now have criminal implications. Injuries may now be indictable and employer representatives and executives may now be subject to criminal prosecution. They number of citations will be stepped up in the "willful" catagories and fines will be increased substantially.
 
A company's liability under the Multi-employer Workplace Doctrine will increase. As an employer using outside contracting companies in your facility you will now be responsible for the safety training of those employees. Failure to provide this training is a violation and may be deemed a willful violation.
 
The general duty clause will take on broader meaning to allow OSHA to cover anything not specifically covered in the regulations. Ergonomics will become a bigger issue.
 
Michael's further states in his speech.. So, you can expect to see us moving, to the extent we can, toward higher penalties, not only to send a message to those employers who neglect their workplace responsibilities, but also to those employers who need reminding that a safe workplace is not something to think about only when it's convenient - when you have the time and money - but every day."
 
So, are you feeling that target on your back getting bigger?
 
Tomorrow I will conclude the week with some tips on what you can do to prevent or mitigate a visit from an OSHA inspector.

Did You Know That OSHA Repairs The Holes in SOX?

There is an old saying that "You learn something new everyday." (For those of you with memory problems that statement is "You learn something knew everyday", LOL) Well today I did. I got One Minute Memo from the Seyfarth Shaw law firm entitled OSHA Steps Up Enforcement of Sarbanes-Oxley Whistleblower Claims. My first reaction to that headline was WHAT????  What does OSHA have to do with enforcing Sarbanes-Oxley violations? I was truly puzzled. What does violations of a financial disclosure law have to do with the agency that does safety inspections??
 
Do you know the answer? (Before you read the answer.)
 
Well it turns out that anyone that claims violations of Sarbanes-Oxley, in particular claims retaliation for reporting violations, must make the claim with the US Department of Labor. OSHA is part of the Department of Labor. And they just happen to have a lot of experience in investigating claims of retaliation for safety violations. As quoted in The Whistleblower Provisions of the Sarbanes-Oxley Act of 2002 by George R. Salem and Laura M. Franze:

"In the past, the Occupational Safety and Health Administration (OSHA) has reviewed the bulk of the complaints received by DOL, probably because most of the current whistleblower statutes administered by DOL involve allegations of safety violations. OSHA also has significant experience in handling allegations of retaliation. It is possible that a new unit, possibly one with specific financial experience, will be set up to handle initial investigations under Sarbanes-Oxley. However, OSHA currently has jurisdiction. Under current practices, the DOL investigates and then issues a “determination letter.” If the letter determination is not accepted by both parties, or the case is not otherwise resolved, the matter is assigned to the Office of ALJ and goes to administrative hearing. These hearings are relatively formal and resemble full-blown trials."

 

This was written in 2003. Given the One Minute Memo from Seyfarth Shaw it is apparent that no new unit was created. So if you are a public company who retaliates against employees for reporting financial violations you will be dealing with OSHA. Given that the Obama Administration Department of Labor has already announce increased enforcement in Wage & Hour and workplace safety this is an indication that SOX enforcement may also be stepped up. As a result Seyfarth Shaw recommends "...employers covered by SOX ... take steps to minimize the risk of claims alleging retaliation for protected whistleblowing. In particular, covered employers should promulgate appropriate ethics and anti-retaliation policies, train supervisors to comply with those policies, and implement hotlines and other methods by which complaints can be fielded and appropriately resolved without actual or perceived retaliation."

 

The lesson here is to make sure you darn your own SOX before OSHA comes in and sticks it to you!

Business Under Assault: Increased Regulations and Enforcement Proposed

If you are a business owner, business manager and especially a Human Resources Manager you should feel like you have a target plastered on you because you do. It is an unfortunate circumstance of our government today they are compelled to pass more legislation and enact more regulation. Unfortunately this ends up making for more work for the small business owner or for the HR manager if the business is fortunate enough to have one.

The bulk of the increase regulation and rule making is coming from the Department of Labor. They have proposed some 90 new regulatory increases. These include:

• Changes to the FLSA to increase amount of payroll records that have to be kept and also made available to the employee every payday in the name of "transparency."
• Changes to labor laws, also in the name of "transparency", that will require employers to fully inform employees about their rights to unionize the employer. They will also require the employer to divulge all monies spent trying to prevent union formation.
• They will "encourage" employers to offer more retirement options to employees that include annuity payments, much like pension plans. Apparently lump sum payments are not going to be acceptable because people "run out of money."
• They are also proposing changes in the regulations for the Office of Federal Contract Compliance Programs (OFCCP); Occupational Safety and Health Act (OSHA) including hazard communication, recordkeeping; Mine Safey and Health Act (MSHA); and Visas.

To this end the DOL has increased the number of Wage and Hour investigators (News Release) and the number of OSHA inspectors. If you would like to see Secretary Solis' statement then you can view her video here. The full regulartory plan has been published in the Federal Register.

If you read it will see frequent statements about the "middle class." Keeping people in the middle class, getting people to the middle class, "finding a path to the middle class", getting "good jobs for everyone, including vulnerable workers" and more. There is certainly a social agenda in these proposals. Hence the need for more regulations.

The DOL, in conjuction with the IRS, is also going to crack down on Independent Contractor usage by businesses. The DOL estimates that over the next 10 years misclassified workers will cost the US Treasury $7 Billlion. And they want that money. So there will be alot more scrutiny of workers labeled independent contractors. You can read more here from The World at Work Law Blog.

So what do you do to protect yourself from this increase inspection, investigation and scrutiny? Here are my suggestions:

1. Understand the FLSA and make sure you are paying people correctly, have them classified correctly and that your recordkeeping is up to date. And train your managers! And document. As I mentioned in my post The Top 5 HR Mistakes That Small Business Makes documentation is very important.
2. Understand the IRS rules on independent contractors. You can get some help here by reading the guidance provided by the IRS, Independent Contractor (Self-Employed) or Employee?
3. If you are in a Target Industry, make sure you understand ALL of the regulations that apply to you and correct any deficiencies you have.

If you are overwhelmed by the prospect of doing this, then seek help. A good HR consultant can be worth their weight in gold. (BTW, I just happen to know one ). Or seek help from an employment attorney. The rest of the regulations we will have to sort out as they come, so stay tuned to HR Observations by subscibing in a reader, found on this page. I will be covering them as they develop.

And for everyone that thinks this stuff is boring, you try keeping up with this crap. This is where companies can lose big $$$$ and if you are saving it you will be golden.

OSHA Gears Up! Jobs, Enforcement and Guidance

In a press release from April 28th, Labor Secretary Hilda Solis said "...
through the American Recovery and Reinvestment Act to improve America's infrastructure and put Americans to work, the Labor Department's Occupational Safety and Health Administration (OSHA) will receive economic recovery funds it will direct toward enhanced and targeted enforcement; technical assistance, guidance, training and outreach; and construction data collection."

Well based on the DOL job openings announcement I received by email today it appears the money is already being spent. The vast majority of jobs listed (click on the link for the listing) are for positions in OSHA. Specialists, investigators, lead inspectors, program assistants, engineers and more.

This is a double-edged sword. On the good side this means good jobs for people interested in the safety field. Some of these pay over $85,000. And it means longevity. And benefits. So if you are interested in a career with the government check it out.

The other edge means that the enhanced enforcement becomes a big possibility. So if safety is a concern for your organization you had better prepare. But OSHA does help. Here is the Field Operations Manual that provides guidance to all investigators. You can wade through all 329 pages to see what you need to do.