OSHA standards for highway work zone inspection

On October 16 of last year, the Occupational Safety and Health Administration (OSHA) issued a directive that details how compliance officers should check road construction products. 

For those like myself who are involved in keeping highway work zones safe, it's helpful to know what OSHA inspectors will be looking at before they arrive. If they're looking at it, it's likely a problem area. This is your chance to stay on top of problems and keep ahead of those OSHA visits.

The directive offers guidance on how OSHA inspectors should inspect road construction sites while applying OSHA standards and following safety precautions that apply specifically to work “on or near” roads, such as sidewalk and utility construction, “where vehicular traffic exposes construction workers to struck-by hazards.”  

The directive explains that inspections of road construction sites will focus on construction work and temporary traffic controls. The process also requires inspectors to request a copy of the project’s safety plan and the worksite’s safety measures.  

Additionally, the directive requires each of OSHA's 10 regions to designate a staff member as the “traffic control coordinator” who will provide support to investigations of traffic control issues and ensure that compliance officers receive training on inspecting roadway worksites.

Get informed BEFORE they arrive.

NLRB overturns major precedent regarding union dues

Even though recent right-to-work decisions in Indiana and Michigan present the potential for large numbers of workers to opt out of paying union dues as a condition of employment, a recent ruling by the National Labor Relations Board will allow unions another avenue to collect union dues.

Issuing a ruling in WKYC-TV, Gannet Co., Inc., the Board ruled that even when a union agreement expires, employers should still collect union dues from employees' paychecks. This goes against a long-standing precedent which dates back fifty years, which allowed employers to stop collecting union dues when a collective bargaining agreement ends.

This ruling will give labor unions another incentive to drag out contract negotiations and less incentive to negotiate in good faith with employers. But prolonged labor contract negotiations do come with a risk to workers, as evidenced by the decision of Boeing to open a production facility in South Carolina and the decision to close Wonder Bread. But as union dues are the lifeblood for organized labor, which has seen it's numbers continue to decline in recent years, this kind of ruling is one that means they can keep collecting money, even when they're not delivering results for their members.

An article on the Employment Law Daily website discussed the Bethlehem ruling:

In Bethlehem Steel, the NLRB, relying on the proviso to Sec. 8(a)(3) that “nothing in this Act shall preclude an employer from making an agreement with a labor organization to require as a condition of employment membership therein,” held that an employer acted lawfully in unilaterally ceasing to honor a contractual union security clause.

The Board ruled that this new opinion would only apply to future cases.

Understanding Obamacare Employer Mandates

It’s clear that Obamacare isn’t something many like, but unless someone finds a way to repeal it, it’s mandates are reality on employers – and so are the potential penalties which can be imposed upon employers. Some of the provisions that are soon to kick in are not going to be easy for employers to navigate.

To help explain some of what’s coming up for employers, the IRS recently published a proposed Rule, Shared Responsibility for Employers Regarding Health Coverage, which provides some guidance for HR on how to comply with requirements which the law will place upon “large” employers – those with fifty or more full-time (or the equivalent of) employees, which is defined as those working an average of thirty hours a week or more. The legislation would require these employers to provide health care cover with a specified “minimum value” beginning in 2014, or pay penalties.

This proposed Rule has a comment period that ends on March 18. As part of this, the IRS posted a Q&A digest to help answer questions. Read on for more of what there is to learn about these proposed expectations:

Unions busted for union-busting - yes, really

This is pretty funny stuff. Unions getting busted for trying to bust union organization efforts by the NLRB:

It was just a few months ago when Obama’s National Labor Relations Board ruled that the International Brotherhood of Teamsters union had engaged in union busting and ordered the union to stop harassing its own union organizers for wanting their own union.

Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkersand–again, the Obama labor board is having none of it.

The Teamsters even hired lawyers and even appealed losing their case - but ultimately lost.

You can't make stuff like this up.

OSHA & safety professionals questioning safety incentive programs

OSHA is changing how it assesses effective and appropriate safety programs, putting workplace safety programs under close scrutiny. A March 12, 2012 directive from the agency aims to discourage employers from using an incentive or reward system based upon safe workplace outcomes, arguing these practices may discourage the reporting of incidents and injuries.

Reporting on the Society for Human Resource Management website, Roy Maurer wrote that Deputy Assistant Secretary of Labor Jordan Barab reiterated the agency's commitment to stand by the policy direction expressed in the memo:

(S)poke Nov. 15, 2012, before the National Advisory Committee on Occupational Safety and Health, a group tasked with measuring the effectiveness of OSHA’s strategies and programs. He said that “employers have explained their objections to the directive, but none of those reasons is that it doesn’t improve safety and health.” OSHA has asked these employers to provide statistics or studies to show that rate-based incentive programs improve safety and health, but none has, according to Barab.

This was one of four practices which OSHA addressed in a memo sent out to regional administrators and whistleblower program managers in the March of last year, warning that: 

If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.

The memo went on to caution that "if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries that it is required to record under Part 1904."

While some actions by OSHA aren't welcomed by safety professionals, this one is getting some support from safety professionals who are concerned that rewarding fewer safety incidents is working to discourage the reporting of incidents, thus masking the presence of workplace hazards and gloss over unsafe behaviors.

"Run, Hide, Fight" video on workplace shootings gaining attention

A workplace safety video posted on a website by the Alabama Department of Homeland Security was shown to Charleston County Council members last night by Charleston County Sheriff Al Cannon. The video, entitled "Run, Hide, Fight" presents a simulated workplace shooting incident and suggests responses that could be taken to protect against a potential shooter:

Cannon made a presentation Thursday to Charleston County Council on a five-minute video, called “Run, Hide, Fight,” which is available on the Sheriff’s Office website. He encouraged council to in some way adopt and make use of the video, which already has been adopted by the city of Houston.

The video was produced with money from a grant from the U.S. Department of Homeland Security, Cannon said.

The video, which was originally developed by the Homeland Security department of the City of Houston, Texas is part of "Active Shooter Information", a safety resource website developed by Alabama Homeland Security in response to recent public mass shootings. Since it's release, the video has generated considerable publicity, including it's presentation by Sheriff Cannon.

It doesn't seem like this advice is an aberration as the video has also been shared on a number of other police websites, including St. Louis County, Missouri and Prince George's County, Maryland. A workplace security conference held earlier this year in California shared the same advice on how to respond. It's worth noting that in all cases, the experts say running or hiding are the best responses.

The U.S. Department of Homeland Security has a workplace violence brochure online which offers the same advice.

Check out the video below:

My national op-ed: "A Bad Year for Big Labor"

This article I wrote about the national setbacks suffered by organized labor was published on the national website Front Page Magazine this morning:

Early in 2012, labor unions began a major political offensive aimed at regaining political initiative after a number of high-profile setbacks in 2010 and 2011. Focusing their efforts in Michigan and Wisconsin, two Midwestern states with strong union bases, their costly efforts to roll back efforts to challenge their power ended up costing them, leaving them worse off than when the year started.

In Wisconsin, labor unions poured thousands of people and millions of dollars into recall efforts to keep the GOP-held legislature and Governor from challenging their lock on state government. When the smoke cleared, Governor Scott Walker, along with most of the targeted legislators, survived recall campaigns. Efforts by labor unions to end Republican control of the Wisconsin legislature were short-lived as Republicans made good their recall losses by adding to their majority in the Wisconsin House and regaining control of the Senate in the November elections.

In Michigan, efforts by labor unions to lock in their power and blast their opponents out of power fell short. Their main effort, campaigning for a constitutional amendment that was aimed at keeping the state from enacting right-to-work legislation, failed by nearly twenty points on Election Day. Expensive efforts to target state legislators also fell short, including spending nearly a million dollars to topple the Republican House Speaker.

Emboldened by these victories, Michigan Republicans responded by pushing through right-to-work legislation, which ends the ability of labor unions to compel employees to pay union dues as a condition of employment in both private and public sector workplaces, following a move by Indiana, which became the first “Rust Belt” state to adopt right-to-work legislation earlier this year.

These political upsets were just the latest in a string of recent setbacks for organized labor which signify a growing erosion of the once-formidable power of labor unions ...

Want to read the rest of the article?

Department of Labor publishes updated Rule list

Several agencies under the U.S. Department of Labor are making steady progress towards implementing a wide range of rules and guidelines that could put major burdens upon employers, including affirmative action programs, wages, hiring practices, drug testing and safety regulations. The agency's updated Rule List for 2012 gives human resources and safety professionals a look at what the Department is working on, giving them fair warning of things to come in the next two years.

Many of the rules which are in final rule-making phase come from three agencies - MSHA, OFCCP and OSHA. On this list is the DOL's proposed hiring mandate, which would compel employers to hire a mandated quota of handicapped applicants on federally-funded projects, which has been discussed on this blog before. 

Here are some of the rules in the final phase from the U.S. DOL agencies:

• Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors
• Application of the Fair Labor Standards Act to Domestic Service
• Confined Spaces in Construction
• Electrical Protective Equipment
• Handling of Retaliation Complaints
• Lowering Miners' Exposure to Coal Mine Dust 

 Read up and see how these rules might affect you.

General Assembly to resume work on Work Zone Safety reform

Those who know me, personally or professionally, know that my latest legislative project in South Carolina has been to seek to rewrite and toughen laws on work zone enforcement. While the challenge of making work zones safer has been a professional problem for years, it became much more personal back in March of last year when a drunk driver entered a lane closure, ramming and destroying my personal vehicle while I was doing a site inspection.

I can tell numerous stories and show numerous examples of where my co-workers had close calls, the reality is that work zones are at least as dangerous for motorists. In over a decade in the industry, not a single company employee was killed or seriously injured in a work zone incident, while eight motorists and three pedestrians have died in our work zones.

Work zone safety reform is about protecting workers AND motorists.

Senate Bill 139 is the legislation which was filed by Senators Larry Grooms (R-Berkeley County), Chair of Senate Transportation Committee and Larry Martin (R-Pickens County), Chair of Senate Judiciary Committee. The legislation will add a dedicated penalty to cover law enforcement costs, allowing the state to hire additional law enforcement officers, along with an additional two-point penalty against one's license. Similar legislation was filed in the 2011-2012 legislative session, but died when that session ended back in the summer.

In addition to safety concerns, there are other considerations that are driving this legislation:

2013 is coming - watch those employee handbooks!

While the employee handbook was once an afterthought of companies, seldom reviewed and updated even less often, it's one of the biggest liabilities for employers with regard to lawsuits and actions by federal regulatory agencies.

The truth that catches some employers off-guard, especially smaller ones who don't have dedicated HR staff or who don't have well-supported human resources operations, is that the employee handbook is one of the most widely-circulated company documents. Thus employers should take it seriously and make sure whatever goes into it should be reviewed with a fine-tooth comb.

A recent blog story discussed how the NLRB was using the language of employee handbooks to expand its jurisdictional reach into non-union workplaces. 

A recent email update from the Society of Human Resource Management's website cautions employers to take a close look at their employee handbooks, warning that "Legal and regulatory changes—more than new laws—are driving the need for company policy adjustments, revised plan documents and updated employee handbooks for 2013 by U.S. employers."

Among those items the article warns employers to pay close attention to are social media policies, employment at-will statements, handbook receipts, termination policies and state-specific issues.

Warning of continued close regulatory watches by agencies under the current Presidential administration, the article suggests that handbooks should be checked at least every six months and employers may want to include a disclaimer which cautions that state and local laws may also apply to terms of employment.

Online, after-time and overtime hours create potential problems

A while back, I'd written about the need for employers to be even more aware for the potential for a Wage & Hour compliance visit and how to be pro-active on these issues.

The other day, this story - Don't Get Sued by Your Number One Employee - from the Fox Business website gave additional food for thought about potential exposure for violations related to unpaid overtime hours:

Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, said at the root of the overtime regulation debate is the Fair Labor Standards Act (FLSA). The law establishes minimum wage, overtime pay and recordkeeping and youth employment standards, but is also extremely outdated, having been written in 1938.

“The Department of Labor estimates 70% of businesses are out of compliance with the FLSA,” Harned said. “This just points out how confusing [the law] is.”

And oftentimes, small business owners don’t even realize they are essentially breaking the law. For example, just because an employee is "non-exempt" from working overtime, doesn't mean they are entitled to continue working past their 40 hours per week, if the employer imposes such a regulation.

With technology allowing the lines to blur between work and off-duty time, employers need to be aware of when their employees are really working and to ensure they are properly classified so they don't get hit with a lawsuit for back pay or get tripped up in a Wage and Hour audit. It's an issue that I've had to deal with more than once and it's one where lawyers can easily get involved, costing employers large sums of money, win or lose.

Of course, always, always document everything - and expect employees to do the same from their end.

You can visit the U.S. Department of Labor and their Wage and Hour Division online for more guidance.

Senator Tim Scott: Major NLRB critic moves to the Senate

If there's anything one can be sure of about the appointment of South Carolina Congressman Tim Scott to replace Jim DeMint, who is resigning from the Senate to lead the Heritage Foundation, is that he's not going to be any friendlier to the National Labor Relations Board (NLRB) or organized labor than DeMint was.

If anything, Scott's record in the House suggests he'll be even more vocal on these issues than DeMint. WScott sponsored three bills in the last session of the House related to the NLRB and union activity in workplaces:

• H.R. 1976 and 2587, both sponsored by Scott, would bar the NLRB from directing companies to close or move plants or jobs.
• H.R. 2810 - The “Employee Rights Act”, would require the use of secret balloting to unionize a workplace and require a renewal vote every three years. It would also set guidelines on how these elections are to be conducted.

While in the House, Scott received very low scores on scorecards issued by three labor unions:

• AFL-CIO: Voted with them on just one out of 20 votes in 2012 and received a zero score in 2011.
• AFSCME: Zero score
• SEIU: Voted against their position on 8 out of 9 bills, no score assigned

With the direct impact of the NLRB being felt in South Carolina, where it moved to try to block Boeing's expansion in Charleston, as well as threatened to block the state from enacting legislation to codify the 2010 referendum allowing workers to decide workplace issues via secret ballot, it's not likely that Scott will back off his stance when he crosses over to the Senate next month.

Another reason for tougher Work Zone enforcement in South Carolina

Yesterday was another sad lesson in the need to crack down on work zone violators in South Carolina, when a motorist was charged with DUI with an incident which an SCDOT worker was hit and killed on Interstate 20:

The driver of the car that killed a state Department of Transportation worker on Interstate 20 in Lexington County Monday afternoon has been charged with driving under the influence and leaving the scene of an accident, according to the state Highway Patrol.

Thomas Lee Stafford, 39, is accused of driving drunk when his 2003 Nissan SUV hit Nicholas Johnson and fatally wounded Nicholas Johnson, who was walking along the road’s emergency lane near mile marker 62, according to Highway Patrol spokesman Brent Kelly.

Make no mistake about it, the dangers of work zones are real. If you doubt it, I invite you to spend some time in work zones, which is part of what I've done for a living for over a decade as an HR and Safety Manager.

While you might think it's just workers who are in harm's way, think again:

MA gas line eruption: Bad marks on ground to blame

A recent gas line blast in Massachusetts which damaged 42 buildings in Springfield, Massachusetts was determined to be the result of an employee following bad markings on the ground. 

This problem highlights a major concern which helped drive the efforts of myself and others to rewrite South Carolina's underground utility safety laws - the reality that contractors have to rely upon information from others and that safe digging is a partnership between contractors, utilities and locator firms. 

The picture on the right was presented by a state Senator in a Senate Judiciary Committee hearing two years ago. It showed a scene in Myrtle Beach where gas lines were found six feet from the marks, helping demonstrate the lack of effective standards and enforcement which convinced legislators the time had come to change the laws.

While reforming laws to keep up with changing needs, technologies and standards is important (the 2011 law replaced one written in 1978), one should keep in mind that laws create a framework and set baselines for accountability, but they don't always provide answers in the field.

Most locators I deal with are good at what they do, so this isn't a blanket indictment of their profession. But it does point out the need to proceed with caution and get all the information available before working, as well as be sure your locator knows what they're doing. Also, if you are working on a project where SUE (subsurface utility engineering) reports give you additional information about what's below.

Always know what's below, so you don't end up a headline - or worse:

House GOP makes first move on immigration reform

Hit by accusations that the GOP has been unfriendly to immigrant populations, House Republicans in Congress are making the first post-election move on opening up the immigration process.

House leadership is planning to bring the STEM Jobs Act, sponsored by House Judiciary Chair Lamar Smith, a Texas Republican, up for a second vote as early as next week. The legislation was voted on earlier in the fall, carrying 257 votes in the House, including 30 Democrats, but failed as rules required a two-thirds vote on the legislation. The new vote will simply require a majority to secure passage.

Business groups, including the U.S. Chamber of Commerce and Consumer Electronics Association, are backing the legislation, which is said to be aimed at boosting American tech companies, who continue to contend with a lack of skilled workers, even in the slow economy. This legislation could help American high-tech companies address staffing shortages while reducing the number of educated candidates available to foreign companies.

Labor unions shut down Hostess, no more Twinkies

If you're looking for Twinkies or Ding-Dongs on your grocery shelf in the near future, you can forget it - and you can thank labor unions for making it happen.

Struggling to get out of bankruptcy, Hostess - the maker of snack foods like Twinkies, Ding-Dongs and Wonder Bread - announced the decision to close the company after negotiations over wage and benefits packages broke down and labor unions went on strike.

A news release posted on the company's strike information website explained the issues that factored into the decision to close the company, which had been in business for nearly a century:

How do you "sell" safety?

In addition to being an HR and Safety person, I've also spent several years as an adjunct professor, teaching public speaking and other communication courses. One of the most important things I teach my public speaking classes is that you're always selling something - your ideas, your products, your clients and yourself.

Then I get to job sites and see people who are supposed to provide safety leadership - foremen, project managers, safety leads, etc. - who couldn't see water to a dying man in a desert. These are the people who yell directives, demand to know why someone isn't following the rules and read weekly toolbox training talking points from the sheets without even looking up to see if anyone's awake or listening.

This is one of those cases where it's not just good enough to know your own trade or know the rules. Leaders have to lead, which means they have to share their ideas and bring their teams along with them. But in construction, too many in leadership roles don't have any clue how to truly lead, making the role of any safety person more challenging.

Speaking and communicating are key skills for leaders in an organization and in a field like construction, those skills are often sorely lacking.

OSHA to expand reach into small workplaces?

While OSHA inspections have given small employers a pass on enforcement visits, that may be about to change. According to a story on the Bloomberg BNA website, the findings of a recent study of OSHA by the Office of the Inspector General of the U.S. Department of Labor (OSHA's Site Specific Targeting Program Has Limitations on Targeting and Inspecting High-Risk Worksites), included recommendations that the agency expand its inspection focus to include smaller workplaces.

The USDOL OIG office raised questions about the focus and effectiveness of OSHA's Site-Specific Targeting (SST) program, a program which was established in 1999 to target general industry worksites reporting the highest injury and illness rates. The program targeted worksites based on injury and illness rates calculated from employer responses to the annual survey known as the OSHA Data Initiative (ODI) survey.

One OIG recommendations called for OSHA to expand the scope of it SST program to include worksites with eleven to nineteen workers, as opposed to the current minimum number of twenty.

The OIG report criticism of the effectiveness of the SST program argued that the focus on larger worksites meant the agency was skipping over a large number of high-risk worksites:

Three good articles on presenting more effectively

Communication is a large part of my day job - and what I teach in my part-time adjunct professor teaching slots. While the aspects of my job which relate to media and community relations obviously involve communicating effectively with audiences, a lot of work related to human resources and safety also requires effective communication skills.

Good ideas, useful products and smart options get lost all the time because someone may be knowledgeable about something but can't get their points across effectively.

I got an email today from Speechworks, one of a number of email lists that I'm on, which features three good articles discussing how to communicate and present more effectively in professional settings that fit well with what I've learned from professional experience and what I teach in the classroom. I hope you find them useful.

Surviving DOL Wage and Hour audits

Since we're talking about compliance audits which can result in fines and costly and time-consuming administrative policy changes, let's talk about another agency which can come a'knocking: U.S. Department of Labor (USDOL).

The agency has been stepping up inspections for years, looking for companies which under-pay their workers, going back to the agency's Strategic Plan for Fiscal Years 2006-2011.

I've been through these before and my company passed with flying colors. Like most regulatory and compliance visits you'll encounter, they would be the most fun you've had on the job, but if handled properly - and prepared for beforehand - they're survivable.

But learning what they are, how to handle them, understand the process, and handle paperwork defensively beforehand are the keys to getting on top.