Workforce Bulletin

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

The deadline passed last week for OSHA to appeal a recent decision by an Administrative Law Judge (“ALJ”) that struck down OSHA’s attempt to expand its Personal Protective Equipment (“PPE”) standard by way of an enforcement memorandum that mandated oil and gas employers ensure their employees don flame retardant clothing (“FRC”) during drilling operations (OSHA's “FRC Memo”).  The Judge ruled that the FRC Memo constituted “improper rulemaking under the aegis of an enforcement standard.” See Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).  The Occupational Safety and Health Review Commission (“Review Commission”) also declined to independently take-up the decision for review, so the ALJ’s decision is now officially a Final Order of the Review Commission.

The ALJ’s decision represents a meaningful victory for employers as it relates to any PPE enforcement action, not just those related to FRC. The ALJ chastised OSHA for attempting to circumvent the formal notice and comment rulemaking process required by the Administrative Procedure Act (“APA”), by issuing the FRC Memo rather than amending its regulations. Although OSHA did not appeal the Judge’s ruling, the Agency has expressed, through both words and actions, disagreement with the Judge’s ruling.

The Petro Hunt case arose out of an October 15, 2010 OSHA inspection at an oil production worksite in North Dakota, after the Sherriff’s Department notified the Agency that a fire engulfed a treater shed. Following the inspection, OSHA cited the employer for allegedly failing to provide and require employees to wear FRC. The employer contested the citation, and a hearing was held before ALJ Patrick Augustine in November 2011. In this case of first impression, the ALJ concluded that the FRC Memo did not simply interpret the standard but, rather, amounted to a new standard that should have been subject to the formal rulemaking process under the APA.

Judge Augustine reasoned that the FRC Memo transformed the PPE standard from a “performance-based” standard – which grants employers reasonable discretion to assess the nature of hazards at their workplaces and select appropriate PPE to address those hazards – into a specification standard – in this case, an obligation to provide a specific form of PPE (flame retardant clothing), during oil and gas operations “regardless of the particular circumstances that may be present at any individual facility.” In striking down the FRC Memo, the Judge stated:

Complainant cannot ‘require’ anything more than what is authorized by the regulations. If [the Secretary of Labor] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then she must report to the required notice and comment rulemaking process. Otherwise, [OSHA] must independently prove in each case that Respondent had actual notice, or that a reasonable person in Respondent’s position would have recognized a hazard requiring the use of FRC.

The ALJ also rejected OSHA’s argument that the Review Commission should grant deference to OSHA’s interpretation in the FRC Memo, because, Judge Augustine explained, the interpretation was “unreasonable and inconsistent” with established regulations. The ALJ proceeded to vacate the citation, reasoning that OSHA failed to establish that the employer had actual notice of a need for FRC at the inspected worksite, or that a reasonable person familiar with the circumstances and industry would have recognized the existence of a flash fire hazard. To support his decision, the ALJ highlighted the following facts:

1. OSHA’s failure to establish that flash fires were a hazard at the worksite;
2. None of the employer’s employees suffered injuries due to fires in the previous two years; and
3. The employer conducted a thorough hazard assessment, and reasonably concluded that engineering and administrative controls (methods of addressing hazards generally preferred over reliance on PPE), adequately addressed any potential fire hazard.

Now that the Supreme Court of the United States has upheld essentially all of the provisions of the Obama administration's Affordable Care Act ("ACA"), hospitality employers are faced with looming deadlines to bring their group health plans into compliance with the ACA's numerous new requirements. We have prepared for employers a timeline of the highlights of the upcoming deadlines for compliance with the ACA that apply to non-grandfathered group health plans.

Click here to access a copy of the timeline.

by Joan A. Disler, Michelle Capezza, and Gretchen Harders

Now that the Supreme Court of the United States has upheld essentially all of the provisions of the Obama administration’s Affordable Care Act (“ACA”), employers are faced with looming deadlines to bring their group health plans into compliance with the ACA’s numerous new requirements. We have prepared for employers a timeline of the highlights of the upcoming deadlines for compliance with the ACA that apply to non-grandfathered group health plans.

Click here to access a copy of the timeline (PDF).

By Michael Kun

Earlier this year, we were pleased to introduce our free wage-hour app for iPhones and iPads.  The app puts federal wage-hour law, as well as that for many states, at users’ fingertips.

We have recently added New Jersey law to the app, as well as updated it to reflect changes in California law following the long awaited Brinker v. Superior Court decision clarifying meal and rest period laws.

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

by Allen B. Roberts and Michael J. Slocum

Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982 (“STAA”) whistleblower protections available to drivers of commercial motor vehicles (including independent contractors when personally operating a commercial motor vehicle), mechanics, and freight handlers, as ...

by Barry Asen

New York management-side attorneys and their clients were surprised and chagrined when they read Bennett v. Health Management Systems, Inc., a case decided in December 2011 by the New York State Supreme Court, Appellate Division, First Department (“the First Department”), which sits in Manhattan.  Writing for the unanimous five-judge court, Justice Rolando Acosta directed that because the New York City Human Rights Law (“NYCHRL”) explicitly provides that it should be liberally construed, summary judgment motions should only be granted in the ...

by: Lauri F. Rasnick and Margaret C. Thering*

Title VII of the Civil Rights of 1964 (“Title VII”) not only prohibits employers from discriminating against employees or prospective employees because of their religion, but it also requires employers to “reasonably accommodate” the religious practices of employees provided that such reasonable accommodations do not cause the employer “undue hardship.”  According to the EEOC Compliance Manual, reasonable accommodations may include, among others, scheduling changes, voluntary shift swaps, lateral transfers, and ...

by Allen B. Roberts and Michael J. Slocum

Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982 (“STAA”) whistleblower protections available to drivers of commercial motor vehicles (including independent contractors when personally operating a commercial motor vehicle), mechanics, and freight handlers, as ...

By Eric J. Conn

In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June.  According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day.  I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory ...

By:  Kara M. Maciel

In April of 2011, the U.S. Department of Labor (“DOL”) changed its rule defining the general characteristics of tips in an attempt to overrule the U.S. Court of Appeals for the Ninth Circuit’s decision in Cumbie v. Woody Woo, Inc. ruling that the FLSA does not impose any restrictions on the kinds of employees who may participate in a valid tip pool where the employer does not claim the “tip credit.”

DOL’s Recent Position on Tip Pool Participation

The DOL’s amended rule provides that tips are the property of the employees, and may not be used by the employer ...