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Posts in Washington.

MSHA recently released the results of the July 2014 impact inspections. Over the past several years, MSHA has conducted impact inspections at Coal and M/NM mines that involve several inspectors and usually result in a large number of citations. Mines are selected for impact inspections based on several criteria, including hazard complaints, plan compliance issues, workplace examination citations, accidents, injuries, and illnesses, and enforcement history.

I love reading the Economist and they justified my appreciation with an August 9 Obituary on Warren Bennis, who they rightly described as “the world’s most important thinker on the subject that business leaders care about more than any other: themselves.”

The theory is that the contractors are under such competitive pressure that they will ignore OSHA requirements and will fail to pay for all hours worked or for overtime premiums. The assumption is that part of the reason manufacturers hand off certain functions is to escape liability for wage and safety violations. Moreover, critics believe that temporary and other non-traditional employees receive inadequate supervision and safety training.

The ABA-OSHA annual Committee Meeting is always one of the best occasions to learn where Fed-OSHA and the State-OSHA Plans are heading. As I type, Jordan Barab, Deputy Assistant Secretary - OSHA is discussing and sort of defending the Fed-OSHA increasing authority over State-Plans, including the recent CASPA against Indiana OSHA. Good stuff comes out of our annual meetings and various articles will be published by publications. If you want brief play-by-play updates as they occur, follow me on Twitter, @howardmavity.

Allen Smith, J.D., the manager of workplace law content for SHRM. ( @SHRMlegaleditor) recently asked three attorneys, including me, to set out our wishes and cautions for OSHA in 2014, and then wrote a good (and short!) article. My responses are below, along with some comments from some construction safety experts, but please read Allen’s complete article. Allen generates good content.


These are the links I sent to F P attorneys after recently conducting an in-house session on our workplace safety practice. The focus of the links was not on building a safety culture, which is my favorite topic, or on the various labor and employment topics I regularly write upon.

These posts only deal with 2013 OSHA enforcement issues. These posts also do not include other attorneys' posts or great stuff from sites such as TLNT, EHS, etc.

OSHA Inspections

Under OSHA’s Contingency Plan, all but approximately 10% of its employees are furloughed. If one calls an Area Office, you’ll encounter an Area Director and perhaps an Assistant Area Director, who respond to workplace fatalities or complaints of situations threatening a high risk of death or serious injury. In some cases, senior compliance officers may be involved. Similarly, the five or six top managers in each region are working. This skeleton crew not only respond to workplace fatalities, but they must also somehow issue citations within the six months of commencing an inspection. Despite the unusual circumstances, as recently as last year, the powerful D.C. Court of Appeals upheld the six-month requirement in AKM v. Secretary of Labor.

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.

In case you saw headlines today, such as the one in the Wall Street Journal pasted below, we have attached the Treasury statement following the WSJ blurb.

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