Workforce Bulletin

By Eric J. Conn, Head of the OSHA Practice Group

The U.S. Court of Appeals for the District of Columbia Circuit recently provided some much-needed clarification to the meaning of “Willful” with respect to violations of the Occupational Safety and Health Act, in the case of Dayton Tire v. Secretary of Labor, No. 10-1362 (2012).  Violations of the OSH Act fall into one of four categories, with “Willful” and “Repeat” violations being the most severe, and carrying penalties up to 10x that of “Serious” or “Other than Serious violations.  29 U.S.C. § 666(a)-(c).  All OSHA ...

By Michael Kun and Aaron Olsen

To the surprise of few, the California Supreme Court has decided to review the Court of Appeal’s decision enforcing a class action waiver in Iskanian v. CLS Transportation Los Angeles, LLC. 

We wrote in detail about that decision on this blog earlier this year.  

In reaching its conclusion, the Court of Appeals relied on the April 2011 United States Supreme Court’s landmark decision in AT&T Mobility, LLC v. Concepcion.  Whether the California Supreme Court will follow Concepcion or attempt to distinguish it is impossible to predict.   Unfortunately ...

By Gretchen Harders

On August 31, 2012, the Internal Revenue Service (IRS), along with the Department of the Treasury, Department of Labor (DOL) and Department of Health and Human Services (HHS), issued guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) on the application of the employer responsibility standards to large employers (the employer “play or pay” mandate), IRS Notice 2012-58 , and the 90-day limit on waiting periods for group health coverage, IRS ...

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question.  Click on the image of the slide below to watch and listen to the first webinar response.

In this post we address a ...

By Eric J. Conn, Head of the OSHA Practice Group

On June 18, 2010 OSHA replaced its much-maligned Enhanced Enforcement Program (EEP) with a new and equally problematic initiative called the Severe Violator Enforcement Program (SVEP).  The SVEP is intended to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

• Any violation categorized as “Egregious”;
• One or more Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
• Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, including falls, amputations, grain handling, etc.); or
• Three or more Willful, Repeat or Failure-to-Abate violations related to Process Safety Management (prevention of the release of a highly hazardous chemicals).

According to an attorney with OSHA’s Solicitor’s office, employers are not added to the SVEP immediately upon receipt of citations meeting these criteria, but rather, are deposited in the Program within fifteen working days of receipt of the citations upon either a settlement at an Informal Settlement Conference, or the filing by the employer of a notice of contest challenging the validity of the citations.  More than two-thirds of SVEP cases are contested by the cited employer, and of the 200+ contested SVEP cases, nearly half of those contests remain open today.  As a result, some employers have been on the list for more than two years despite OSHA not proving that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP.  The constitutional due process implications of the SVEP are glaring.

Once an employer is added to the SVEP (again just based on unproven allegations), the company is immediately subject to the punitive elements of the Program, including mandatory follow-up inspections at the facility where the SVEP-qualifying citations were issued, as well as at sister facilities throughout the enterprise.  The issuance of SVEP-qualifying citations also comes with a heavy dose of public shaming by the Department of Labor.  Specifically, with every SVEP citation comes a public press release issued by OSHA, which now includes an inflammatory quote from a high-ranking OSHA or Department of Labor representative about the employer.  The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.”  The SVEP press releases and an embarrassing public log of all employers in the SVEP are available on OSHA’s website.

The final problematic element of the SVEP has always been the manner in which employers can (or cannot) be removed from the Program once they get in.  For more than two years, OSHA operated the SVEP without providing employers any way out of the Program, other than by eliminating the underlying SVEP-qualifying citation through the multi-year contest process or persuading OSHA to withdraw the qualifying citations in a settlement.  After much clamoring from industry, OSHA finally released a press release summarizing a memorandum from the Director of Enforcement Programs to the Regional Administrators on August 16, 2012, which set forth a series of removal criteria.

The memo provided a framework for getting out of SVEP, but the extremely harsh removal criteria provide little relief to employers.  The memo explains that:

“[A]n employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.”  Of course, it is not as easy as just waiting those 1095 days from a Final Order.  Employers must have also “abated all SVEP–related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional Serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.”

If employers fall short of any of these requirements, they will have to wait an additional three years to be considered for removal.  Even if the employer does meet all the criteria, removal from SVEP is not guaranteed.  In all cases with the exception for those involving corporate-wide settlements, the Regional Administrator has the final say as to whether an employer is removed from the program.  That discretionary decision is based on vague, undefined factors related to follow-up inspections and enforcement data.  Employers who agreed to corporate-wide settlements are reviewed for removal by the Director of Enforcement Programs (“DEP”) in OSHA’s National Office.

From our colleague at Epstein Becker Green Katherine R. Lofft, on the TechHealth Perspectives blog:

There are myriad opportunities right now for new businesses and talented entrepreneurs targeting healthcare, particularly in the IT sector. It’s an exciting time for people and companies looking to harness the promise of innovation and the power of technology to improve health care delivery, empower patients and lower costs.

However, even the best ideas usually require money to get off the ground. Sometimes they require more capital than the founders or management, or their ...

By Michael Kun

EBG’s free wage-hour app, which allows users to access federal law and the laws of many states, has been updated to include Massachusetts law.　

The app can be dowloaded here: http://itunes.apple.com/app/wage-hour-guide/id500292238?mt=8

By Eric Conn, Head of the OSHA Practice Group

We recently had an article published by the Washington Legal Foundation entitled "OSHA Continues Trend of Informally Imposing New Rules."  The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA's attempts to circumvent Formal Notice and Comment Rulemaking by changing regulatory requirements through interpretation letters, directives, and enforcement memoranda.  Here is a link to the original post.

Below is an excerpt from the expanded article, published this week in Washington Legal ...

by Jeffrey M. Landes, William J. Milani, Susan Gross Sholinsky, Dean L. Silverberg, Anna A. Cohen, and Jennifer A. Goldman

New York State has finally codified its position on permissible deductions from employees’ wages. On November 6, 2012, an amendment to New York’s Labor Law (“Labor Law”) will take effect. The amendment expands the list of employee wage deductions that New York employers may lawfully make, so long as the employee authorizes such deductions.

On September 7, 2012, Governor Andrew Cuomo signed into law the legislation that he introduced, which amends Labor ...

by Jeffrey M. Landes, William J. Milani, Susan Gross Sholinsky, Dean L. Silverberg, Anna A. Cohen, and Jennifer A. Goldman

New York State has finally codified its position on permissible deductions from employees’ wages. On November 6, 2012, an amendment to New York’s Labor Law (“Labor Law”) will take effect. The amendment expands the list of employee wage deductions that New York employers may lawfully make, so long as the employee authorizes such deductions.

On September 7, 2012, Governor Andrew Cuomo signed into law the legislation that he introduced, which amends Labor ...