Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways. In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below.
The Occupational Safety and Health Administration (OSHA) conducted an inspection of your facility. OSHA issues a serious citation to your company for a machine guarding violation, despite the fact the OSHA investigator did not actually observe a plausible infraction. Your company would like to contest the citation because it was not justified. However, your company is not sure if it can afford to pay an attorney to fight the citation. There may be relief. The Equal Access to Justice Act may provide your company with an avenue for having the government foot the bill for your company challenging the citation.
North Carolina law requires employers with a workers’ compensation experience rate modifier (“ERM”) of 1.5 or higher to “establish and carry out a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees.” Not just any program, however, will comply with the statutory requirements.
Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) provides “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. § 815(c)(1). In Secretary on behalf of McGary et al. v. Marshall County Coal Co. et al., 38 FMSHRC 2006(Rev. Comm. Aug. 2016) & 40 FMSHRC 261 (Rev. Comm. March 2018), the CEO held a series of “Awareness Meetings” with the work force, specifically requesting that when employees filed anonymous hazard complaints to the Mine Safety and Health Administration (“MSHA”), they report those same conditions to the operator. Complaints were filed with MSHA after these meetings and a hearing was held in front of an Administrative Law Judge (“ALJ”) to determine whether these meetings interfered with miners’ rights.
April 28, 2019 is World Day for Safety and Health at Work. Fisher Phillips proudly celebrates the safety of all workers with our clients.
The legal basis of interference is in Section 105(c)(1) of the Federal Mine Safety and Health Act (“Mine Act”) - “No person shall discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of the statutory rights of any miner.” 30 U.S.C. §815(c)(1). The interference test has developed into a two-part evaluation of an operator’s reaction to protected activity or treatment of miners’ rights. The real question is whether MSHA must show if an operator’s actions were motivated by protected activity or were intended to interfere with miners’ rights to establish an interference claim.
Under the Occupational Safety and Health Act of 1970 (OSH Act), employers have a right to be given the opportunity to accompany an OSHA compliance safety and health officer (CSHO) during an inspection of the workplace.
The Mine Safety and Health Administration (MSHA) has launched a pilot program for Part 100 conferencing in the hopes of reducing the number of contested citations. Under the pilot program, which will run from April 1 – June 30, 2019, MSHA will hold conferences with operators with the understanding that the goal of the conference is to reach a negotiated settlement before the contest process begins. During the conference, the operator and MSHA would negotiate both paper changes and penalty amounts for all citations conferenced. If a resolution is reached, both parties would sign an agreement indicating the terms of the settlement and that the operator agrees not to contest the citations or assessments before the Federal Mine Safety and Health Review Commission (“FMSHRC”). If a settlement is not reached, the operator would retain its contest rights before the FMSHRC. The pilot program applies only to 104(a) citations that are not subject to a special assessment.
As you may have seen in the news, an anticipated first all-female astronaut spacewalk had to be cancelled because the International Space Station did not have the appropriate sized space suits for both of the female astronauts (Anne McClain and Christina Koch) to conduct the spacewalk together. Ultimately, Koch conducted the space walk with the male astronaut (Nick Hague). According to NASA, the astronauts trained with various sized space suits, but the effect of microgravity changed the sizing preferences once in space. An ill-fitting space suit would make the job more difficult, but could also present safety concerns.
The popular new Podcast series, Dr. Death, provides employers an opportunity to analyze how they would handle problematic reference requests and embarrassing public information. The fascinating podcast series follows a Dallas area neurosurgeon who may have killed or maimed 33 of his 38 patients. The series focuses on why various parties did not candidly share information about the surgeon and is critical of almost every aspect of the organizations' public and internal responses. Listen and ask yourself, "could you have done better?"