Category Archives: safety

Taking a Timeout for Safety

workplace safetyAs part of what U.S. Secretary of Labor Thomas E. Perez has described as an “unprecedented event,” employers across the country are expected to join the Occupational Safety and Health Administration this week as participants in the National Fall Safety Stand-Down.

Part of OSHA’s fall prevention campaign, the stand-down will include “tens of thousands of employers and hundreds of thousands of workers” taking a break from the job to focus on outlining the hazards of falls and improving fall prevention efforts, said Perez in a Department of Labor statement.

According to OSHA, falls are the leading cause of death in the construction industry, and lack of fall protection was the most frequently cited OSHA violation in 2013. Throughout this week, employers and workers in a variety of industries will examine how to change all of that.

For example, the University of Texas at Arlington has joined OSHA staff to kick off fall-prevention events throughout the state of Texas, while Clark Construction Group is hosting a stand-down at the Stanford University Medical Center in Palo Alto, Calif. Today, NASCAR driver Greg Biffle is due to be on hand at the Daytona International Speedway in Daytona Beach, Fla., where he will demonstrate fall protection at the facility.

“Falls cause immense pain and suffering when they happen, and we must do everything we can to stop them,” said Assistant Secretary of Labor and OSHA head David Michaels, in the DOL statement.

“The good news is that they are preventable with three easy steps. The best protection is to plan ahead, ensure workers have the right equipment and train each worker to use it.”

More information on the National Fall Safety Stand-Down—including details on conducting a stand-down, accessing free education and training tools, fact sheets and other resources, and receiving a certificate of participation—is available at www.osha.gov/StopFallsStandDown.

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Best to Shy Away from Ukraine Relocations or Trips

This report Friday from the BBC about the escalating crisis in the Ukraine certainly underscores alerts and cautions released days and weeks earlier about not doing business there right now. Though business travel doesn’t fall completely under the purview of human resources, this earlier alert  — which contains a link to this article — from the Incident Management Group Inc. is 177725008 -- ukraineworth a look. Relocation and expatriate considerations are tied in to this as well.

According to the alert, you’d better not only keep your employees and executive leaders out of the Ukraine and Moldova for the time being, you’d better keep a keen eye on Eastern Europe in general if your organization does business there.

The ousting of Ukraine’s pro-Russian prime minister in February, resulting in the annexation of the Crimea and continued Russian provocations, the alert says, “have caused alarm and unease in many countries in the region [and] many corporate travel managers are concerned that the security situation could deteriorate … .”

Some analysts, the IMG article says, “believe that Russian aggression could go even further [a prescient warning indeed], fearing that Russian forces massed along Ukraine’s eastern border could be preparing for an invasion.”

It goes on to offer this perspective for businesses doing business there:

Employee travel security in Eastern Europe is normally not a large safety concern. Ukraine and Moldova are at an elevated risk, but most of the countries in the region are roughly comparable to other EU nations in terms of security. For example, the countries of Poland, Czech Republic, Romania, Bulgaria, Slovakia and the Baltic States are generally pretty safe. Visitors should be concerned about the potential for scams and petty theft, but violent crime directed against visitors is generally uncommon.

However, an escalation of Russian aggression could have negative implications for employee travel security [throughout] Eastern Europe. For example, increased tensions could lead to more cyber attacks on Western organizations based in the region. These attacks could be carried out by the Russian government or by rogue pro-Russian elements. One such organization, dubbed ‘Cyber Berkut,’ has already claimed credit for an attack against NATO’s website, and may seek out other pro-Western targets.

Additionally, an escalation of tensions could lead to a Russian energy embargo. After all, much of Europe is dependent on Russian oil and gas. An embargo could lead to shortages and civil disorder in the region, especially if such an embargo took place in winter when demand for natural gas is at its highest. Furthermore, an energy crisis could affect the operations of companies doing business in the region, especially those that rely on fuel to conduct their day-to-day operations.”

From the looks of things geopolitically, there’s no settling down going on, now or anytime soon. This report last Monday from ABC News notes 15 more Russian officials have been added to the European Union’s list of sanctions protesting Moscow’s meddling in the Ukraine — bringing the total number of EU sanctions to 48.

Best advice? According to IMG, get with a professional security consultant if you haven’t already and make sure your organization is developing or updating an evacuation plan. And if an employee or relocatee doesn’t have to be there, by all means don’t send him or her.

 

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Service-Dog ‘Fakers’: Could It Happen at Work?

464734925 -- guide dogsThis was certainly intriguing: a release from KCRA in Sacramento, Calif., about a hearing before the California State Senate examining what appears to be a real problem out there: people masquerading their dogs as guide dogs for the disabled so they can bring them along to wherever they’re going.

I guess they would miss them that much, which says something about the kind of person who would conjure up such a scheme. Worse yet, what kind of person would actually then “play act” a disability, namely blindness?

“This is a big issue in California,” Phyllis Cheng, the executive director of the Fair Employment and Housing department, says in testimony. In fact, here is the entire senate-hearing report:

Here, too, is the Fox 45 news report on the problem:

So I’m wondering, could this become a problem in the workplace? I asked two employment attorneys — Keisha-Ann Gray at Proskauer (HREOnline‘s “Legal Clinic” columnist) and James McDonald, managing partner of the Irvine, Calif., office of Fisher & Phillips — for their takes on this.

They tell me that, although there is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees, every employer with 15 or more employees is required to try and make a reasonable accommodation if the request is made, unless that accommodation would cause an undue hardship to the business or present a direct threat to health and safety.

Could this kind of cheating actually lead to workplace “dog parks” though? Well, maybe not dog parks, but both say yes, they could see this kind of problem occurring at work. Such widespread scheming is definitely humanely possible, they say. “I know of people personally who claim their pets are service animals and they put a little vest on the animal so they can go in restaurants, etc.,” McDonald says.

Neither attorney gave much credence to this getting out of hand, necessarily, in corporate America. Thinking realistically, if you consider the fact that employees bringing dogs to work would then have to care for them for the entire day (and we’re talking food, exercise and potty breaks), “that might mitigate this a little bit,” McDonald says.

The bottom line to keep in mind, says Gray, is that this is the very type of situation that could get you in legal trouble if not handled properly. Faking questions aside, “once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability,” that employer must engage in a reasonable-accommodation dialogue.

And although “reasonable” does mean it does not create undue hardship or safety hazards, proving that a particular dog might bite or “seems irritable” could get dicey.

I’m thinking trying to nail someone for faking a disability or service-dog credentials could get dicey, too.

Best advice, from Gray: “If you’re thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved.”

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College Football Team Wants to Unionize

football playersCollege athletics are a multi-billion dollar business — with most of that revenue generated by college football players. The players are, of course, unpaid — but that isn’t stopping the football team at Northwestern University from trying to form a union.

As reported on ESPN.com, Ramogi Huma, president of the College Athletes Players Association, filed a petition at the Chicago office of the National Labor Relations Board on behalf of the Northwestern University Wildcats football team. Northwestern U. is located in the Chicago suburb of Evanston, Ill. “This is about finally giving college athletes a seat at the table,” Huma told ESPN. “Athletes deserve an equal voice when it comes to their physical, academic and financial protections.”

Concussions, and the alleged lack of attention devoted to preventing them by the NCAA, represent one of the chief concerns of the Northwestern players and is a big reason why they’re trying to form a union, Huma said:

It’s become clear that relying on NCAA policymakers won’t work, that they are never going to protect college athletes, and you can see that with their actions over the past decade. Look at their position on concussions. They say they have no legal obligation to protect players.”

Wildcats quarterback Kain Colter, who reached out to Huma last spring for help in getting the players representation, told ESPN that “we love Northwestern” and that the players have no issue with their treatment by the university, but that the NCAA has failed to adequately address safety issues such as concussions and that they’re seeking to organize on behalf of all college players: “Right now the NCAA is like a dictatorship. No one represents us in negotiations. The only way things are going to change is if players have a union.”

In a statement, Northwestern said it supports having a dialogue around the issues and the right of the football team to have a voice in that dialogue, but that it does not support the players organizing through a labor union.

The NCAA issued a statement from chief legal officer Donald Remy:

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.”

Huma and the Wildcats football team are being backed in their efforts by the United Steelworkers union, which will pay CAPA’s legal expenses.

The unionization effort isn’t aimed at getting salaries for the football players, although Huma didn’t specifically rule that out as a long-term goal in the ESPN interview. Instead, the focus is on getting guaranteed coverage for sports-related medical expenses for current and former athletes, and compensation for sponsorships. The group also plans to establish a trust fund to help former players complete their degrees and push for an increase in athletic scholarships.

Jeff Kessler, a Winston & Strawn partner who helped bring free agency to the NFL, told Bloomberg News that the petition will likely be appealed past the NLRB to the courts. Last fall Kessler said he was starting the first college-focused division at a major law firm to represent players, coaches, schools and conferences against the NCAA.

“This proceeding will present the fundamental issue as to whether or not students athletes should be considered employees who can unionize for purposes of the national labor relations act,” Kessler told Bloomberg News.

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OSHA Proposes Rule to Improve Injury Tracking

On the heels of the Bureau of Labor Statistics report that estimated 3 million workers were injured on the job in 2012, OSHA has issued a proposed rule designed to boost workplace safety and health through better tracking of workplace injuries and illnesses.

In a Nov. 7 teleconference, OSHA proposed to amend current recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers must already keep under existing standards. The first proposed requirement would oblige about 38,000 private companies with more than 250 employees to submit records electronically to OSHA on a quarterly basis.

Developed after a series of stakeholder meetings to help OSHA gather information about electronic submission of establishment-specific injury and illness data, the proposed rule “does not add requirements” for employers with respect to keeping safety records, said David Michaels, assistant secretary of labor for occupational safety and health, during the teleconference. Rather, he says, “it only modifies employers’ obligations to send records to OSHA.”

Michaels says the rule’s purpose is to provide employers, employees, the government and researchers with better access to data that will encourage earlier abatement of workplace hazards and ultimately prevent injuries, illnesses and fatalities.

Some companies and industry groups, however, are critical of the proposal, saying details about workplace incidents can be “misleading and misused,” according to a recent Wall Street Journal article (subscription required).

“It’s like reading just the plaintiff’s side of a case,” said Brett McMahon, president of Miller & Long DC Inc., telling the paper he previously submitted workplace safety records to the BLS, which were “wrapped into broader industry data without identifying the company.”

Others voiced concern that the new proposal may unintentionally put pressure on companies to under-report injuries.

“What OSHA is hoping to accomplish is that by getting it more visible, companies will do the right thing and work to reduce the numbers. That’s a good, long-term goal,” Barbara Dawson, an industrial hygienist at DuPont Co. and president of the American Industrial Hygiene Association, told the Journal. “But I think there’s going to be some short-term concern about the tendency to want to under-report so that the records look better.”

The public will have through Feb. 6, 2014, to submit written comments on the proposed rule. OSHA will hold a public meeting on the proposed rule in Washington, D.C., on Jan. 9, 2014.

Additional information on the proposed rule can be found here.

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Worker Fatalities Continue to Decline

I would hardly put the preliminary results from the Bureau of Labor Statistics’  National Census of Fatal Occupational Injuries report, released yesterday, in the category of good news, but it does at least point to continuing improvement in the number of fatal injuries.

Coming off a modest decrease in 2011, the BLS preliminary report revealed a 7 percent decline in workers who died from work-related injuries—4,383 in 2012, compared to 4,693 in 2011. (In 2012, the fatal workplace injuries rate stood at 3.2 per 100,000 full-time equivalent workers, down from a rate of 3.5 per 100,000 in 2011.)

Here’s what DOL Secretary Thomas E. Perez had to say about the data:

Workers in this country have the right to return home safe and healthy at the end of a work day. Despite that right, poor safety conditions cause thousands of people each year to lose their lives at work.

I am greatly encouraged by the reduction in workplace fatalities, even in a growing economy. It is a testament to the hard work of employers, unions, health and safety professionals, and the Labor Department’s Occupational Safety and Health Administration and Mine Safety and Health Administration. Through collaborative education and outreach efforts, and effective law enforcement, these numbers indicate that we are absolutely moving in the right direction … “

SafetyPerez went on to say “we can and must do better,” particularly in areas such as oil and gas and construction—where fatalities climbed.  Fatal work injuries in oil and gas extraction industries rose 23 percent while fatal work injuries in private construction climbed 5 percent, after five consecutive years of declining counts.

In an effort to address some of these more troubling problem areas, Perez adds, OSHA has undertaken a number of outreach and educational initiatives, including a campaign to prevent falls in construction and the National Voluntary Stand Down of U.S. Onshore Oil and Gas Exploration and Production, co-sponsored by oil and gas industry employers and planned for Nov. 14.

Other findings in the report …

  • Fatal work injuries declined among non-Hispanic white workers (down 10 percent) and Hispanic or Latino workers (down 5 percent) in 2012.
  • Fatal work injuries were higher among non-Hispanic black or African-American workers and non-Hispanic Asian workers.
  • Fatal work injuries involving workers under 16 years of age nearly doubled, rising from 10 in 2011 to 19 in 2012—the highest total since 2005.
  • Work-related suicides declined 10 percent from 2011 totals, though violence accounted for about 17 percent of all fatal work injuries in 2012.
  • Transportation incidents accounted for more than two out of every five fatal work injuries in 2012.

Of course, let’s remember these are preliminary numbers and open to later adjustment. But it’s at least comforting to see them moving in the right direction.

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Curbing Bad Behavior: What’s Out of Bounds?

How far can a company go in an attempt to curtail unsafe or unsavory conduct among its employees? The NFL’s Dallas Cowboys are contemplating a move that may test the limits.

In the early morning hours of Dec. 8, Cowboys defensive tackle Josh Brent and Jerry Brown, a Cowboys practice squad linebacker and passenger in Brent’s Mercedes-Benz at the time, were involved in a one-car accident. Brown was killed in the crash, and Brent—who has reportedly admitted to drinking in the hours before his car hit a curb and caught fire—now faces intoxication manslaughter charges.

Less than 48 hours later, former Dallas running back and current Cowboys consultant Calvin Hill told USA Today the Cowboys organization is “considering” a mandate obliging Cowboys players to have electronic devices installed in their cars that would prevent the vehicle from starting if the driver is impaired.

The device, called SafeKey, “includes a small fob that is attached to the key ring, which sends electronic signals to a complementary device that can prevent a vehicle from starting if a driver doesn’t pass a test based on color-coded light emissions.”

When I first saw the USA Today piece, I thought, there’s no way this concept could come to fruition. For starters, it’s tough to imagine the NFL Players Association allowing the Cowboys or any other franchise to impose this type of mandate on its players, and my guess is the NFLPA would do its level best to stop this idea in its tracks.

From a legal standpoint, I also wondered if an organization—be it “America’s Team” or XYZ Corp.—could really go through with this if so inclined.

So, I asked Mark Askanas, an employment law litigator, partner and litigation manager in the San Francisco office of Jackson Lewis.

“It’s an interesting issue” with many questions that employers interested in implementing such a measure must first answer, he says. For instance:

Does the company provide the cars to employees, or does it provide a car allowance such that the car is company property, and the employee should have no expectation of privacy?

“This is easy,” says Askanas, “if it’s a company-provided car versus a car the employee owns but receives an allowance for.”

Would there be a way to turn the device off and on such that the employer could activate it when the employee is driving the car for company business, and then deactivate it when the employee is off from work?

“An accident coming to or from work may still create liability for the employer,” he notes.

Is the person on the company’s vehicular insurance policy, such that the company has an interest in ensuring the employee never drives while intoxicated?

Is this something organizations can offer to employees that they could accept on a voluntary basis?

So, it seems employers may have some legal ground to stand on here, depending on the circumstances and rationale for mandating the installation of such devices. While it remains to be seen if the Cowboys’ idea will ever get past the talking stage, or if other, more everyday organizations will have similar notions, the concept raises some interesting questions about employers’ place in influencing employees’ behavior away from the workplace.

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Mulling (Some Testy) Background-Check Testimony

The U.S. Commission on Civil Rights is still wading through testimony gathered Friday during its briefing to determine what impact the U.S. Equal Employment Opportunity Commission’s guidance on criminal-background checks is having or may have on the employment of black and Hispanic workers.

At this point, there doesn’t seem to be a precise timetable for an ensuing report and/or recommendation from the civil rights commission, or specific plan for the guidance, which the EEOC issued on April 25. But safe to say, one overriding theme of the Dec. 7 testimony – taken from 17 different individuals, representing employer groups, advocacy organizations, screening groups and providers, and employment sectors across the country – came in loud and clear: Businesses need to continue screening for criminal histories and they need some clarifications on portions of the guidance or they will remain, as one testified, “between a rock and a hard place.”

In the words of the USCCR, in its announcement about the Friday briefing, “the commission has initiated this investigation to determine whether the new EEOC guidance policy or other prohibitions or limitations on the use of criminal background checks results in lower job opportunities and reduced employment overall among minorities, including non-offenders.”

In other words, the commision’s concern – as raised over the past year by one of its commissioners, Peter Kirsanow – is that, for employers to either remove or not rely so heavily on the criminal-conviction question in a job application, as the EEOC has recommended, they might be creating a hiring system that, in turn, encourages discrimination of black and Hispanic males due to the sheer larger incarcertaion rates for these minorities.

As Rich Mellor – vice president of loss prevention for the Washington-based National Retail Federation and one of those testifying – told me in a follow-up phone call, “without that confirmation that an applicant does not have a criminal background,” an employer might be prone to try that much harder to hire a non-minority.

Even with such a confirmation, or disclosure of a criminal record and the chance to explain, minority job applicants are often hobbled by still-pervasive racial bias in hiring, according to testimony from Glenn E. Martin, vice president of development and public affairs for The Fortune Society, based in New York. He cited a Princeton University study of the low-wage labor market in New York that showed black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

“Moreover,” Martin testified, “the positive outcomes for black applicants, when presenting evidence of a criminal record, were reduced by 57 percent.”

Mellor, in his testimony, raised an additional red flag about the transparency of this crucial criminal-background conversation. The EEOC guidelines, he said, “were enacted without giving retailers or other employers a chance for input,” according to an NRF release issued just after the briefing. “Hearings,” it says, quoting Mellor, “were held only with a ‘select group of predetermined stakeholders’ and actual text of the guidelines was released only the same morning that they were approved and implemented by the EEOC.”

The EEOC gave me this response today to the NRF’s release:

The NRF and other business groups communicated their views to the EEOC, and we considered them during the development of the guidance. Representatives of employers, individuals with criminal records, and other federal agencies testified at public EEOC meetings in November 2008 and July 2011.  The [EEOC] also received and reviewed approximately 300 written comments from members of the general public and stakeholder groups that responded to topics discussed during the July 2011 meeting.

The stakeholders that provided statements to express their interests and concerns include prominent organizations such as the Retail Industry Leaders Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Insurance Association, the National Association of Professional Background Screeners, the NAACP, Leadership Conference on Civil and Human Rights, the Public Defender Service for the District of Columbia, and the D.C. Prisoners’ Project, among others. Additionally, throughout the process of drafting the guidance, individual commissioners and staff met with representatives from various stakeholder groups such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project and the Equal Employment Advisory Council to obtain more focused feedback on discrete and complex issues.

Many of those organizations listed above had people testifying Friday before the USCCR as well, in addition to employment lawyers Jackson Lewis and Duane Morris, screening provider EmployeeScreenIQ, the U.S. Bureau of Justice Statistics and many more.

Duane Morris’ Jonathan Segal, who testified Friday on behalf of SHRM, told the commissioners that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he said, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring on the results.”

In addition, he said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment — seemingly making criminal convictions a new protected status.”

Rest assured I will be following this and will report developments as I catch wind of them. Pretty packed with pressing issues for employers, I’d say.

 

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Part II: The Losers

In my last post, I shared a list of some of this year’s winners. Well, here’s my selections of people and organizations that didn’t fare as well in 2011. (Of course, there’s always next year.)

Unemployed workers, who were in some cases being denied work because they were unemployed.

Zynga—Before going public, the social game maker came under fire for demanding that certain employees who were given stock rights in the early days of the company surrender a portion of those shares or be fired. (Certainly, we could cite those “certain employees” as losers too.)

Public-sector unions, which continued to loose clout in states like Ohio, Georgia, South Carolina, North Carolina and Virginia.

Renault, which wrongly accused three executives of selling company secrets—and then terminated them. (Apologies and settlements promptly followed.)

Amazon, which became the subject of an Allentown Morning Call story about horrendous 110-degree working conditions at one of its Pennsylvania warehouse facilities. (Likely the same facility that ships many of the goods that show up on my porch.)

SHRM, which took a lot of heat in 2011 over allegations of a lack of transparency (primarily from a recently formed group named SHRM Members for Trasnparency). Granted, while political squabbling between these two groups contributed to the allegations,  the attention they got did undermine the credibility of SHRM’s leadership.

Herman Cain, whose run for the nation’s highest office swiftly came to an end following allegations of sexual harassment during his tenure as CEO of the National Restaurant Association (and allegations that we was having an affair).

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Deep Regrets?

Over the years, I’ve regularly reached out to Merrie Spaeth, president of Spaeth Communications, for her perspective, particularly on topics related to executive communication during crisis situations. To be sure, there’s no shortage of communication experts out there; but Spaeth (who I first met many years ago when she conducted a workshop at one of our HR conferences) can always be counted on to get to the heart of the matter.

For years, Spaeth has been producing her BIMBO awards, through which she recognizes executives, celebrities and others who make the common mistake of repeating a negative assertion in their response. There’s almost always at least one “I can’t believe they said that” in her selections.

On Friday, with 2011 winding down, Spaeth came out with her “BIMBO of the Year” awards. In particular, I shook my head when I read (or should I say re-read)  her choice for runner-up: Transocean (of Deepwater Horizon fame). Perhaps you’ll remember when the firm made the following statement in its securities filings as it attempted to justify awarding multimillion dollar bonuses for its executives:

“Not withstanding the tragic loss of life in the Gulf of Mexico, we achieved an exemplary statistical safety record.”

Ugh!

Spaeth’s take on this:

This staggeringly inappropriate and insulting comment makes the list for many reasons. First, they dismiss the “tragic loss of life” as if it’s a blip on the screen. Second, they claim an exemplary “statistical safety record.” That’s like saying there were only 50 children abused in thePennState scandal. Transocean doesn’t understand the deaths call into question the entire safety culture of the operation.

Enough said. Let’s just hope Transocean chooses its words a bit more carefully as it prepares next year’s filings.

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