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As 2015 begins, the Occupational Safety and Health Administration (OSHA) is sharpening its emphasis on inspecting and citing employers who violate its recordkeeping standard. This takes on greater importance because of the changes and new reporting requirements effective on January 1, 2015.
New OSHA Reporting Rules
Under the new rules, all employers are now required to contact OSHA within 24 hours following an occurrence of any in-patient hospitalizations, amputations, or loss of an eye, as well as the current requirement to contact OSHA within eight hours following a fatality. For reporting compliance, employers have three options when contacting OSHA: 1) call the nearest area office; 2) call OSHA’s 24-hour hotline 1-800-321-OSHA(6742); or 3) report online.
New Recordkeeping And Posting Requirements
Many new categories of employers must now maintain and post OSHA injury and illness records going forward. Employers who were already covered must complete and post their 2014 annual summary by February 1, 2015 and keep it posted until April 30, 2015. Employers must utilize the annual summary form (form 300A) to comply with the posting requirements. Even if you have no recordable injury or illness, you must still complete your 300 logs and post the 300A summary.
Below are some key details that are frequently misunderstood or overlooked which can lead to OSHA citations.
Executive Certification
OSHA’s recordkeeping standard requires a certification of the 300A summary by a company executive. Four specific management officials may be considered “company executives” for purposes of certifying the 300A summary: 1) an owner of the company; 2) an officer of the corporation; 3) the highest-ranking company official working at the location; or 4) the immediate supervisor of the highest-ranking company official working at the location. This official must certify that he or she has reviewed the OSHA 300 logs and related records, and reasonably believes, based on knowledge of the process underlying the development of the data, that the posted summary is accurate and complete.
OSHA describes this requirement as imposing “senior management accountability” for the integrity and accuracy of the reported data. Human resources managers and safety directors normally cannot sign the OSHA 300A summary unless they are officers of the company.
Number Of Employees And Hours Worked
The annual summary requires employers to include a calculation of the annual average number of employees covered by the log and the total hours worked by all covered employees. The purpose of this requirement is to help employers compare the relative frequency of significant occupational injuries and illnesses at their workplace as compared to other establishments.
Posting Process
The 300A summary must be posted in each establishment in a conspicuous place or places where notices to employees are customarily posted. You are under a duty to ensure that the posted annual summary is not altered, defaced or obscured during the entire posting period.
Those employers who maintain these records in electronic form should still retain the signed posted summary after the February 1 to April 30 posting period, to prove that it was properly signed.
You should provide copies of the 300A summary to any employee who may not see the posted summary because they do not report to a fixed location on a regular basis. Even where an establishment has had no recordable injuries or illnesses, you must still post the 300A summary with zeros in the appropriate lines and certified by a company executive.
Record Review
Before the annual summary is prepared, the recordkeeping rule imposes an express duty to review the log (form 300) to verify that entries are complete and accurate. Employers must review the records as “extensively as necessary” to ensure accuracy.
OSHA scrutinizes the forms 301, 300 and 300A for even minor errors in descriptions and boxes checked. Take time to review the forms for technical errors as well as to review accident reports, first aid logs and other related materials to ensure that all recordable incidents have been included and that records are consistent. Employers have a duty to update and maintain records for five years plus the current year and provide them upon request for inspection by OSHA investigators.
Newly Covered Employers
Finally, all employers who have previously been partially exempt from OSHA recordkeeping requirements and were not required to maintain the form 300, should review the updated industry exemption list to see if they are now covered. Under the new rule, 25 industries that were previously exempt are not, and must now maintain the OSHA 300 logs and other required documentations.
The topic this month highlights record retention and cover what employers should be keeping and for how long.
Did you know that there are over 14,000 federal, state, and industry specific laws/standards/regulations that dictate how long employers are required to keep certain records? Non-compliance can result in fines against company employees personally as well as judgments against the company itself.
Some of the Federal Labor and Employment laws that require record retention include:
Please contact our office directly if you would like more information on this topic or if you would like more information regarding how to conduct an audit of your company record retention policies.
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.
Please contact our office if you need a copy of either the OSHA 300 or 300A logs.
The media, paired with political figures, have paid increased attention to workplace bullying in recent years. Legislators in 21 states have even introduced bills to address and combat workplace bullying, starting with California in 2003.
However, none of the legislatures in states which these bills have been introduced have passed the bills into law. There are a variety of explanations for why there has not been a change in the law despite workplace bullying becoming a hot button employment issue, but the most obvious explanation is this: it truly is difficult to define workplace bullying.
What Is It….Exactly?
The general definition of work place bullying is a behavior in which an individual or group uses persistent, aggressive, or unreasonable behavior against a coworker or subordinate. As with childhood bullying, we often think of workplace bullying as being physical acts against another, such as assaulting a coworker or invading a coworker’s personal space in a threatening manner, however it often takes a more subtle forms. For instance, a supervisor can act as a bully by manipulating work tasks, like giving a victim repetitive or irrelevant assignments as a means of control. Supervisors can also act as a bully in the way they provide feedback. For instance, a supervising bully can choose to belittle a subordinate in a public setting so as to humiliate them, as opposed to delivering the constructive criticism in a private setting.
Because bullying comes in many forms and is often understated, it is a challenge to create a proper definition for it. Most notably, it is difficult to draw precise lines between assertive managers and bullying conduct. Employers depend on their managers to evaluate the performance of the employees under their supervision and to provide feedback so employees can learn from mistakes and improve. The big question is how do we know when that vital evaluation process has crossed the line and become bullying behavior, especially when criticism by its nature entails negative statements.
Employers can use two simple rules of thumb to aid in analyzing if certain behavior constitutes bullying, especially with respect to supervisor/supervisee relations:
Problems Are Both Legal and Practical
State legislatures might struggle to define workplace bullying, but the absence of specific anti-bullying laws should not deter employers from being wary to this phenomenon. If left unchecked, bullying can create a host of workplace headaches, such as (1) increased use of sick leave, (2) increased use of medication, such as anti-depressants, sleeping pills, and tranquilizers, (3) social withdrawal, (4) decreased productivity and motivation, (5) increases in the frequency and severity of behavior problems, (6) erratic behavior, such as frequent crying spells and increased sensitivity, and (7) increased turnover.
And the fact that there is no designated legislation for workplace bullying does not mean that the behavior cannot create lawsuits in other ways. Assault and battery claims are the most obvious legal actions that bullying can cause, but there are a host of other ways that employees who are bullied (or who perceive they were bullied) can gain access to the courts.
For instance, a bullying victim can bring a claim pursuant to Title VII for harassment or discrimination if the individual ties the activity to a protected characteristic, such as “my female boss degrades men under her supervision.” A bullying victim can also bring a claim against an employer for negligent hiring and retention on the theory that the employer knew about a supervisor’s bullying tendencies (either during the hiring process or thereafter) and did nothing. There are even implications under OSHA which requires that employers complete a Workplace Violence Incident Report in any instance which an employee commits a violent act against another employee.
Closing Advice
In light of the performance, and litigation, related reasons to combat workplace bullying, you should take steps to handle this problem, if you have not done so already. Every employer should have an anti-bullying policy that : (1) defines workplace violence and bullying behaviors, (2) provides a reporting procedure that identifies multiple managers to whom incidents or threats can be reported, and (3) encourages employees to report incidents, especially by assuring them that the employer will not tolerate retaliation against an individual who complains of bullying.
The last point is especially important because bullying victims often feel powerless as a result of the power dynamic that the bully has fostered. You should also train your managers on workplace bullying so they have a basic understanding of the warning signs and the potential impacts for not addressing bullying at the first possible instance.
While the law has not caught up to the problem of workplace bullying, a savvy employer can get in front of the issue by taking basic steps to ensure a bully-free workplace.
You may be already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including the 20+ Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group.
On one of OSHA’s recent news releases, they state that the Labor Department filed a federal lawsuit against Duane Thomas Marine Construction and its owner Duane Thomas for terminating an employee who reported workplace violence, which is a violation of Section 11© of the OSH Act. OSHA asserts the employer fired an employee for complaining about unsafe work conditions. It may seem a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in today’s current environment. However, as it turns out the hazard the employee complained about was the owner!
The employee alleged that, on numerous occasions between 2009 and 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, make inappropriate sexual comments and advanced, yelled, screamed, and made physically threatening gestures, in addition to withholding the employee’s paycheck.
The employee, who worked directly for Mr. Thomas, reported to him that he was creating hostile conditions. On Feb 25, 2011, the employee filed a timely whistleblower compliant with OSHA alleging discrimination by Thomas for having reported the conditions to him.
On March 28, Thomas received notification of the complaint filing. Five days later, Thomas had computer passwords changed to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s compliant.
OSHA is seeking back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement for the employee. Additionally, OSHA seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and bar the employer against future violations of the OSH Act. Wow…. but the usual warning: we may not know all of the facts.
The employer may have behaved badly and gave the employee the ability to make out a viable claim. Or, the employee may have exaggerated, or even made up the whole thing. But while most employee lawsuits are notorious for not being completely accurate, there must be at least some pretty bad facts for OSHA to take the action it did.
This atmosphere may or may not have presented a valid safety hazard, but guess what? Under the law, the violation is the act of terminating the employee for complaining about a safety concern. And the catch is…the concern does not have to be valid! Please note there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern.
For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger…but that too is a potential violation.
The take away advice from this scenario is to eliminate two phrases from your vocabulary: “Boys will be boys” and “You had to be there”. The main problem is that lawyers and Uncle Sam will ultimately be there if one’s conduct is foolish enough.
Be sure to train your supervisors to behave professionally regardless of the setting and remind them of the many behaviors, including some of the offbeat ones, that are protected as Whistleblowing.
All OSHA 3000A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. It is the only log that should be posted for employee viewing.
If you need a copy of either the OSHA 300 or 300A log, please contact our office.
Employers have finally been given some guidance on how to be removed from OSHA’s Service Violator Enforcement Program (SVEP). On August 16, 2012, a memo was issued by the Department of Enforcement Programs (DEP) detailing the removal criteria for the SVEP. This removal process has not been clear since the implementation of the program in June 2010.