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Posts from July 2013.

This post discusses the most recent decision of the Federal Mine Safety and Health Review Commission ("Commission") regarding the appropriate legal standard for significant and substantial ("S&S") designations. Mine operators should make sure they are aware of the Commission's interpretation of the Mathies test as it evolves so that they can point out instances when the test is misapplied before an Inspector issues a citation.

The Commission's ...

Do you ever feel like you're alone in experiencing inconsistent or heavy-handed MSHA enforcement? If so, there's a new website where mine operators from around the country are able to share their experiences, post citations they have received, and learn more about MSHA enforcement nationwide.

UPDATE: On August 1, 2013, the full Senate by unanimous consent confirmed Robert F. Cohen Jr. and William I. Althen to serve on teh Federal Mine Safety and Health Review Commission.

I am reasonably certain that I have not before and will not again use the word “potpourri” in a post or probably in any other context. It’s not a macho thing. I just don’t like the word. But it sounds better than a “cornucopia of wellness advice.”

I would argue that the biggest challenge in achieving effective wellness programs is to come up with a way to get a tired overworked employee to get up early or stay up late to exercise, or to actually eat more ...

The headline, nine workers struck by lightning tends to grab one's attention. As a longtime Scout leader, I take lightning seriously, but my sense is that most workers do not. Periodically I see employers investigated because of a complaint to OSHA alleging that construction workers or saw mill employees or some other group are exposed to lightning hazards.

A few hours ago, the Senate confirmed the new secretary of Labor, Thomas Perez and EPA Director, Gina McCarthy. Along with two newly nominated Democrat members of the NLRB, signs suggest that we may see an even more activist administration in labor, employment and safety matters. Secretary of Labor is a former tough litigator and deal-maker from the DOJ's Civil Rights Division. Based on his record, we seriously doubt that he will be as ineffectual as the previous Secretary. Expect yet more support for OSHA's emphasis on whistle blowing claims, and for such claims in all DOL agencies. I suspect that we may see more aggressive creation of policy through "Interpretations" and an even heavier Federal involvement in State-OSHA plans. While much of the criticism leveled at EPA nominee McCarthy seemed directed more toward the EPA generally, some law makers termed Mr. Perez too activist.

I have always assumed that exhaustion affects our judgment, makes us sloppy and unsafe, and more prone to anger. Behavioral research supports my assumptions. Perhaps our first wellness step should be a campaign to get employees to sleep . . . and to follow our own advice!

Kudos to my partner and fellow class of 1984 member, Jim McDonald, on being quoted today in the Wall Street Journal in "Why Company Lawyers Are Reading A Mental-Health Manual."

I was fortunate last week to spend time in Denver with my buddies on the AGC National Safety Committee. We had a good discussion on safety apps and technology, which led into discussions about “can I discipline an employee for taking and posting photos of a work site accident,” or “can we discipline an employee for cursing the company, saying derogatory things, and pasting our logo on his Facebook, “kick” or other social media site?” We then discussed whether an employer could prohibit taking and posting photos of a customer’s site, including where secret or proprietary equipment and processes might be involved … and how to respond if the owner of a multiemployer site told the contractor not to allow photos and and posting of about their company or property? But I’m getting ahead of myself. Let’s first review a few social media basics.

OSHA regularly cites retail employers for violations relating to their compactors and balers, many of which are old and ill-maintained. I wish that we could say that deaths involving store contractors are rare, but that would not be true. Please see the recent story below:

REDWOOD City, Calif. -- An employee at a Redwood City Grocery Outlet was killed Thursday night in an accident involving a machine used to compact cardboard for recycling, officials ...

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