Rules + Regs

Contractor cited for exposing workers to fall hazards

The Occupational Safety and Health Administration (OSHA) has cited L.L.E. Construction LLC, Bridgeport, Conn., for exposing employees to fall and other hazards at a construction work site in Bridgeport, according to www.osha.gov. The company is not an NRCA member.

On March 1, OSHA inspectors observed L.L.E. Construction employees installing shingles and a skylight without fall protection. In August, the company was cited for failing to provide fall protection, train employees to recognize fall hazards and properly anchor fall-protection equipment; using a damaged ladder and exposing employees to falls from ladders; failing to provide eye protection; and failing to conduct regular inspections of the work site, materials and equipment. Proposed penalties total $146,544. OSHA previously cited L.L.E. Construction for fall and eye protection hazards in 2010, 2012 and 2013.

L.L.E. Construction has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

NRCA encourages all members to comply with OSHA regulations to avoid possible citations and fines.

State worker fines often lower than federal fines

A recent Bloomberg Environment analysis of federal data reveals businesses may face lower fines in states that run their own worker safety agencies compared with states where the federal government enforces safety rules, according to Bloomberg Law.

U.S. law allows states to operate a state version of the federal Occupational Safety and Health Administration (OSHA), known as "state plans," provided a state's program is at least as effective as OSHA's plan.

During fiscal year 2017, the average OSHA fine for a serious violation was $2,517. Twenty-one states run their own safety agencies, and average fines in those states were below the federal average in all but two—California and Kentucky. Oregon had the lowest average fine of $620.

Michael Wood, administrator of the Oregon Occupational Safety and Health Division, says that unlike OSHA, the state expects employers to correct hazards even if a business is challenging the fine. When Oregon cases are settled, more of the original fine is upheld.

Despite not matching OSHA levels, state-plan fines have increased reportedly because of pressure from the federal government and Congress' 2015 decision to increase maximum federal OSHA fines for the first time since 1990.

Virginia had the highest average penalties increase from fiscal year 2015 to fiscal year 2017, increasing 130 percent to $2,119. In addition, Washington's average fines increased 90 percent; Michigan's grew 86 percent; Hawaii's climbed 72 percent; Vermont's rose 62 percent; and Alaska's increased 58 percent. Fines decreased in two states—Wyoming's average fines fell 23 percent to $1,990, and Maryland's average fines fell 14 percent to $645.

Many states have not agreed to raise their maximum fines to the same levels as federal OSHA.

Kevin Beauregard, chairman of the Occupational Safety and Health State Plan Association and director of North Carolina's program, told Bloomberg Law a program's success should not be measured by fine amount.

"We certainly feel different rates don't have any indication of the effectiveness of a program," he said.

Florida contractor cited for exposing workers to hazards

The Occupational Safety and Health Administration (OSHA) has cited Coastal Roofing Inc., Jacksonville, Fla., for exposing employees to fall and other hazards at a work site in St. Johns, Fla., according to www.osha.gov. The company is not an NRCA member.

In late March and early April, OSHA investigators inspected Coastal Roofing's job site as part of OSHA's Regional Emphasis Program on Falls in Construction. In August, Coastal Roofing received two repeat citations for failing to ensure its employees used a fall-protection system and failing to ensure employees used eye protection. The company also received one serious citation for failing to extend a portable ladder 3 feet above a roof landing. Proposed penalties total $105,283. OSHA cited the company for similar safety violations in January.

"The use of fall protection is not an option—it is a legal requirement that saves lives," says Michelle Gonzalez, OSHA's acting area office director for Jacksonville. "This company's continued failure to comply with fall-protection standards puts the lives of its employees at risk for serious or fatal injury."

The company has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

NRCA encourages all members to comply with OSHA regulations to avoid possible citations and fines.

DOL creates new compliance office

The Department of Labor (DOL) has created the Office of Compliance Initiatives to help employers comply with labor law, according to Bloomberg Law. The office will work with other enforcement agencies to improve regulatory compliance and enforcement and will provide liaisons for employers to clarify or help with the process.

Funded by DOL's existing budget, the office will be under the scope of the Office of the Assistant Secretary of Policy. The office's new websites, www.worker.gov and www.employer.gov, explain compensation, benefits and safety guidelines required by law. Contact information for the Wage and Hour Division (WHD) and for state labor offices also is provided.

Paul DeCamp, who served as WHD administrator under former President George W. Bush, told Bloomberg Law creating an office specifically focused on labor law compliance shows compliance is a clear priority for DOL under the current administration. He said though providing more information to employers and workers could increase compliance, some may believe the move signals DOL will focus less on labor law enforcement.

A director for the office has not been named, but the role will be a career position hired through the federal government's competitive service process.

Court rules Nevada contractor liability statute isn't barred by federal law

On Sept. 4, the 9th U.S. Circuit Court of Appeals ruled federal benefits law does not bar Nevada's contractor liability law that caps the damages union pension plan trustees can collect from general contractors.

The court decided an amendment to Nevada's law, which makes prime contractors responsible for labor debts incurred by subcontractors, does not intrude on any federally regulated area or conflict with The Employee Retirement Income Security Act (ERISA). The amendment, SB 223, was approved in 2015 as a response to lawsuits against contractors regarding uncollected debts from subcontractors years after construction projects had been completed.

The 9th U.S. Circuit Court of Appeals ruling reverses a district court ruling in support of a group of pension plan trustees that sued Nevada's labor commissioner in 2015, saying ERISA pre-empted the Nevada statute. Two years later, the Nevada Legislature repealed SB 223, replacing it with SB 338, which repeats some of the challenged parts of SB 223 and was viewed by the 9th U.S. Circuit Court of Appeals as evidence the state failed to show it wouldn't re-enact any challenged part of SB 223.

The judges said SB 223 doesn't govern a central matter of plan administration, interfere with nationally uniform plan administration, or target the types of reporting, disclosure and fiduciary responsibilities regulated by ERISA; it targets an area of traditional state concern—debt collection practices.

The judges also said though four of SB 223's six amendments made literal reference to ERISA plans, none affected those plans by regulating any aspect of the plans or plan administration. SB 223 completely avoids ERISA's regulatory domain and pares back a state entitlement that holds third-party general contractors liable for plan members' debts.

Organizations petition OSHA for a heat-protection standard

Led by nonprofit consumer rights advocacy group Public Citizen, more than 130 organizations have asked the Occupational Safety and Health Administration (OSHA) to establish a heat-protection standard for U.S. workers, according to www.constructiondive.com. Two former assistant secretaries of labor for OSHA, medical professionals, individuals and worker welfare groups were among the petition signatories.

The petitioners request employers be required to provide mandatory 15- to 45-minute rest breaks at certain heat thresholds, as well as access to shade and personal protective equipment such as cooling vests and clothing made of light-colored, breathable fabric. Additional requests include access to water and electrolytes; a heat-acclimatization plan; heat-exposure monitoring; medical monitoring for workers exposed to heat above certain levels; signage warning of the dangers of heat stress; a written heat-alert program; instructor-led worker training; record-keeping of heat-related injuries and deaths; and whistleblower protection for workers who report violations of the heat standard.

The petition states a worker heat-stress standard is necessary because global warming has led to more days of extreme heat; each summer is producing record-breaking temperatures, with 85 "deadly heat" days projected for the southeast region by 2100. The Bureau of Labor Statistics reports 783 U.S. workers died from excessive heat and more than 69,000 were injured by hot temperatures from 1992 through 2016.

OSHA currently employs its General Duty Clause to help protect workers from excessive heat. The standard requires employers to make the workplace "free from recognizable hazards that are causing or likely to cause death or serious harm to employees." Although there are no heat-specific standards, OSHA offers guidelines about preventing workers from suffering heat stroke or other heat-related illnesses, as well as information regarding how to recognize heat-related illnesses in co-workers and how to administer proper first aid, here.

Any group or individual can petition OSHA for rule changes, additions or deletions. Requests are reviewed, and if OSHA determines a requested standard is needed, the rule development process begins. During rule development, input is obtained from advisory committees or agencies, such as the National Institute for Occupational Safety and Health, and potential effects on small businesses are investigated by consulting with the Small Business Administration.

Once OSHA has developed a written standard, it is published in the Federal Register, first as proposed rulemaking and then as final rulemaking, with OSHA accepting and reviewing public comments during the process. If OSHA determines workers are in "grave danger," the agency also can establish emergency temporary standards until the rule development process is complete.

DOL releases opinion letters to clarify policies

The Department of Labor's (DOL's) Wage and Hours Division released opinion letters Aug. 28 that clarify the department's views regarding employer policies involving compensation and unpaid medical leave.

The letters offer clarity regarding how to compensate workers for time spent attending voluntary health and wellness activities; how to apply overtime exemptions for workers in movie theaters and retail; whether short-term employees can be considered volunteers; whether organ donors qualify for paid medical and family leave; and whether an employer's no-fault attendance policy violates the Family and Medical Leave Act.

An opinion letter explains how a law applies in specific circumstances presented by the person requesting the letter. Anyone can request opinion letters, which are viewed as representing the government's official interpretation regarding whether a compensation policy complies with federal law. Opinion letters sometimes can be offered as a legal defense.

One opinion letter requested clarification regarding overtime exemptions for sales representatives who sell a technology platform allowing online and retail merchants to accept credit card payments from customers using a mobile device, online or in person. DOL said an employer isn't required to pay those workers time and a half for overtime hours and cited the U.S. Supreme Court's decision in Encino Motorcars LLC v. Navarro, in which justices decided overtime exemptions can be read broadly to cover various workers.

Encino Motorcars LLC v. Navarro involved car service advisers who sold service packages provided by technicians at Encino Motorcars LLC. In April, the Supreme Court ruled the advisers are within one of the categories of employees under the Fair Labor Standards Act (FLSA) who are not entitled to time-and-a-half pay when they work more than 40 hours per week. This reversed a 2017 decision by the 9th U.S. Circuit Court of Appeals, which found the workers were eligible for overtime pay.

DOL's approach to addressing wellness activities and FLSA exemptions for retail workers in the technology industry reportedly reflects the department's efforts to expand the law to cover industries that did not exist when the law originally was created.