Archive for December, 2011

OSHA Top 10 Violation: Electrical Safety Explained

Wednesday, December 21st, 2011

The use of electricity has become so common that many people ignore or overlook the dangers it presents. Accidents caused by electricity are largely due to poor maintenance of electrical cords and equipment, improper use of electrical equipment, and unsafe working conditions. Three of the most common issues with electrical safety in a dealership are:
1. Access to Electrical Junction Boxes
2. Proper Breaker Box Labeling
3. Use of Extension Cords as Permanent Wiring

San Francisco Minimum Wage Tops $10 per Hour and Eight States Increase Minimum Wage for 2012

Wednesday, December 21st, 2011

California regarded as an “employee friendly” state with one of the highest minimum wages in the country at $8.00 per hour.  The City of San Francisco however has an even higher minimum wage that the state minimum wage and beginning in January 2012 will have the highest minimum wage in the country at $10.24 per hour.  Eight states will increase minimum wage beginning January 2012. The federal minimum wage remains unchanged at $7.25 per hour.

Arizona—Standard minimum wage increases from $7.35 to $7.65 an hour. Minimum wage for tipped employees increases from $4.35 to $4.65. (The definition of a “tipped employee” differs under many state laws. However, the term is most commonly used for certain employees in the hospitality industry.)

Colorado—Standard minimum wage increases from $7.36 to $7.64 an hour. Minimum wage for tipped employees increases from $4.34 to $4.62 an hour.

Florida—Standard minimum wage increases from $7.31 to $7.67 an hour. Minimum wage for tipped employees increases from $4.29 to $4.65 an hour.

Montana—Standard wage increases from $7.35 to $7.65 an hour. (Montana law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Ohio—Standard minimum wage increases from $7.40 to $7.70 an hour. Minimum wage for tipped employees increases from $3.70 to $3.85 an hour.

Oregon—Standard wage increases from $8.50 to $8.80 an hour. (Oregon law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Vermont—Standard minimum wage increases from $8.15 to $8.46 an hour. Minimum wage for tipped employees increases from $3.95 to $4.10 an hour.

Washington—Standard minimum wage increases from $8.67 to $9.04 an hour. (Washington law does not allow employers to take a tip credit against minimum wage for tipped employees.)


West Virginia Auto Dealership Learns Expensive Lesson in ADA Compliance and Meaning of Reasonable Accomodations

Tuesday, December 20th, 2011

A West Virginia auto dealership learned a very expensive, $56,000 plus legal fees, lesson in ADA compliance this month.  The dealership settled a federal disability discrimination lawsuit filed by the U.S. Equal  Employment Opportunity Commission (EEOC) on December  16, 2011.  The EEOC had charged that Jim Robinson Ford-Lincoln-Mercury  unlawfully refused to accommodate the disability of a salesperson and then fired  him.

The EEOC charged that Jim Robinson  Ford fired Bryan Perry because of his disability, a leg condition that affected  his ability to walk, after denying him a reasonable accommodation. Such alleged conduct violates the Americans  with Disabilities Act (ADA).

In addition to the $56,000 in  monetary relief paid to Perry, the three-year consent decree resolving the  lawsuit enjoins Jim Robinson Ford from engaging in any further employment  practice that discriminates based on disability or retaliation. In addition, the decree mandates that the  company will adopt certain procedures and training to enable it to accurately  assess whether disabled employees can perform the essential functions of their  jobs and to identify reasonable accommodations that will assist disabled  employees, according to the EEOC press release.

Under the ADA, if an employer is asked to provide reasonable accommodations to a disabled employee the employee must establish what are truly essential and what are non-essential functions of the job.  This requirement is just one of the many reasons why it is so important for a company to have accurate and complete job description for each position.  Employers are also required to make reasonable accommodations with the intent being to balance good process practices, monetary concerns and the requirements of the job.  The ADA does not provide a specific definition of what is a reasonable accommodation since what is a considered reasonable will depend on the facts and circumstances of a particular situation. Reasonable accommodation may include modifying work schedules, making physical changes to the work site or equipment, adjusting supervisory methods, modifying a workplace policy, restructuring a job, providing a job coach, and/or reassigning an employee to a vacant position for which (s)he is qualified.  Reasonable accommodation does not require lowering performance standards or removing essential functions of the individual’s job.

Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia  District Office, commented “The  employer must then work to identify a reasonable accommodation for the  employee’s disability. Earnest, interactive  communication with the employee, viewing the purpose of the job and its  functions realistically, and carefully researching and considering options for reasonable  accommodation of the disability are all keys to ADA compliance.”

In  Fiscal Year 2011, the EEOC received a record 99,947 private-sector workplace  discrimination charges, the highest number of charges in the agency’s 46-year  history.

Further  information about this case is available at

To download a free template to create job descriptions go to


Tips to Keep Your SPCC Plan Legal

Friday, December 16th, 2011

By now, most dealerships who qualify for SPCC plans have completed them, but how many of us are following up with the compliance of the SPCC regulations after the plan is in place?

Has your plan been signed by a dealership plan manager?  Are the secondary containment descriptions accurate and in place?  Is your dealership documenting monthly visual inspections?  Are your tanks due for their 5 year SPCC review?  Tank integrity testing was recently brought to my attention.  Your dealership is responsible for complete tank integrity testing for all tanks onsite.  This goes beyond the simple visual inspection.  Here is the reg:

Federal (this requirement is not in effect until October 31, 2007) Under §112.108(c)(6), for bulk storage containers the owner must “Test each aboveground container for integrity on a regular schedule, and whenever you make material repairs. The frequency of and type of testing must take into account container size and design (such as floating roof, skid mounted, elevated, or partially buried). You must combine visual inspection with another testing technique such as hydrostatic testing, radiographic testing, ultrasonic testing, acoustic emissions testing, or another system of non-destructive shell testing. You must …”

One of the testing methods described was a hydrostatic test such as the testing completed on fire extinguishers every 6 years.  This testing will require assistance from a tank testing company.

December Compliance Tip of the Month: SPCC? ASAP!

Thursday, December 8th, 2011

Compliance Tip of the MonthThe deadline for completing a Spill Prevention , Control, and Countermeasure (SPCC) plan for your facility has been extended six times since 2002, but the latest deadline on November 10, 2011 has passed without an extension.  The New SPCC regulations are now law.

The SPCC requirements are intended to help prevent discharge of oil into navigable waters or adjoining shorelines. If your facility has the potential storage capacity of 1320 gallons or more of petroleum products, you must act, potentially even if you already have a SPCC plan in place.

To find out more about EPA’s SPCC requirements you can either visit the EPA’s Emergency Management information pages, or contact KPA. We can prepare, amend, and help you implement a SPCC plan that keeps your business in compliance with these requirements.

Pros and Cons of Using Credit Reports for Hiring Decisions

Thursday, December 8th, 2011

Background checking (including a drug test) is an important step in the hiring process. Background checking is more about the knowledge you gain to make the right hiring decision rather than “exclusion” based on the results. Employers need to be aware of the legal restriction of using certain information in the hiring process. For example in many states you should not be ordering or using the results of a credit report except in very limited circumstance. This short video discusses the pros and cons of credit reports in the hiring process.

A Different Kind of “New Car Smell”

Thursday, December 8th, 2011

A New Baltimore, Michigan woman is suing the car dealership she purchased her 2006 Ford Expedition from for the “human corpse smell” the car started emitting.  She purchased the car from a Ford dealership in March 2010 when the temperature in Michigan was still cold.  The rotting smell became evident as the weather got warmer and the summer months went on. 

The Michigan woman filed a complaint with State Farm over the foul-smelling odor, which she believed to be the result of a dead animal.  The insurance company hired a biohazard cleanup company to search the car and they determined the odor to be of human origin.  The insurance company also discovered that the car had been stolen three times before the woman purchased it, which the dealership failed to disclose.

The woman is suing the Michigan Ford dealership for $25,000 plus court fees.  It seems that the dealership failed to follow the implied covenant of good faith and fair dealing.  Contracts impose this duty on each party as obligation for honesty while conducting a transaction.  This general presumption is applicable when two parties of a contract agree to deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract (i.e. in this case, a vehicle in good “smelling” condition).  Some can argue that the dealership did not deal in good faith because they failed to disclose the past history of the Ford Expedition prior to the purchase of the vehicle.

Getting Ahead of New HR Regulations in 2012- Plan, Prepare and Protect

Wednesday, December 7th, 2011

  The federal Department of Labor (DOL) recently announced that it will significantly change the approach on how it regulates employers’ compliance with certain federal laws. In  2012 the DOL will issue regulations requiring employers to take affirmative steps to ensure compliance with federal wage-and-hour, safety, and anti-discrimination laws. The DOL is moving from the “catch me as you can” approach to regulatory compliance toward a much more proactive enforcement stance with the burden on the employer to “plan, prepare and protect”.  So what’s your plan? Are you prepared? How will you protect? Let’s take it step by step to understand what “plan, prepare and protect” really means.


Plan will require employers to create plans and processes that assess and demonstrate compliance with the federal laws.

Prevent will require employers to implement the plans and demonstrate to the workers that the plans are actually in use.

Protect will require employers to designate certain individual at the company to be tasked with implementing plans and evaluating their effectiveness.

The state of California (as usual) isn’t waiting on the federal Department of Labor. There are several new regulations that take effect on January 1 that will require employers to be much more proactive in notification to employees regarding wage and hour.  California employers should be sure to attend tomorrow’s webinar, “California HR Legislative Update” presented by John Boggs, nationally recognized labor attorney.  You can register for the webinar at


Holiday Party Safety Primer

Tuesday, December 6th, 2011

Holiday parties are a long standing tradition in the workplace. The challenge is to balance the making merry with the keeping safe.   Use these tips to keep employees safe, limit company liability and make sure everyone has a good time.

  1. Avoid any religious ties to holiday parties. A “Christmas Party” may appear insensitive to some employee; however, throwing a generic holiday party should everyone feels comfortable.
  2. Make the party optional.  This is a fun event, a benefit not a chore.  If employees do not want to attend don’t mandate it.
  3.  Size the event to economic conditions. If you have just had a round of layoffs or haven’t provided raises in over a year, consider the message that an extravagant holiday party will send – a simple celebration may be a better option.
  4. Limit or don’t serve alcohol at all. If no behavior altering substances are available to your employees, or if you limit their access to it, chances are employees will be calmer and more in control of their actions. In addition to averting injuries, limiting alcohol consumption could prevent other types of actionable activities, such as property damage and sexual harassment incidents.
  5. If you are going to serve alcohol, check your insurance policy. A key step in your party planning should be reviewing your business insurance policy. If you’re going to be serving alcohol, the Independent Insurance Agents of America, Inc. (IIAA), based in Alexandria, Virginia, suggests checking your comprehensive general liability policy to be certain that it covers third-party liquor liability.
  6. Don’t think a cash bar solves your liability problem. While having a cash bar or a ticket system instead of an open bar may limit drink consumption, be careful. Having your employees and guests pay for the alcohol they consume on your property does not automatically limit your liability if an alcohol related accident should occur. According to the IIAA, if you’re charging for alcohol, you’ll need a liquor license and other liability protections.
  7. Plan an off-premises party so if you decide to serve alcohol at your party, don’t hold the party in your office. Have the party off premises and make sure the servers have a liquor license. That way you transfer the obligation to the provider of the liquor.
  8. Plan a non-traditional get-together such as a group outing to a basketball or football game, and the focus will not be on drinking, but on the g event. Other alternative party ideas from the U.S. Department of Labor include an amusement park outing, or a volunteer activity, such as a 10K run or bake sale, with proceeds going to a local charity.
  9. Hold a family friendly party and take the focus off the typical “sit and drink” party by inviting your employees’ spouses and children to the gathering. Plan activities for the children; perhaps hire a musician or storyteller. A family friendly party also reinforces the company commitment to work/life balance.
  10. Be clear with your employees before the festivities begin.
    Make sure that your employees know your policy on substance abuse and that this policy covers any work situation, including an office party, suggests the U.S. Department of Labor. Post the policy in your employee handbook and on office bulletin boards, and send it out by email as a reminder before the party. HotlinkHR makes it easy to post policies and handbooks online and collect employee signatures.
  11. Provide transportation and keep your employees from getting behind the wheel of a car if they’ve been drinking by providing alternative transportation, both to and from the party.

The goal is to not make like Scrooge but rather ensure that everyone has fun while being safe.

New Tire Charts from OSHA

Monday, December 5th, 2011

There has been a lot of buzz lately over tires. It seems like even touching them is regulated by some federal agency or another. Additionally, I’ve read a few lawsuits, where questions of dealership liability in accidents have been raised, and that doesn’t begin to touch the proliferation of information around waste tire generation, storage or hauling.

So I was not surprised to read that OSHA has revised materials addressing handling and storage standards for workers servicing single-piece and multi-piece rim wheels.

“These updated materials will provide readily accessible information on how to prevent worker injuries and deaths from tire-servicing incidents,” said Dr. David Michaels, Assistant Secretary of Labor for OSHA. “The new format and easy access will simplify compliance with the standard by helping employers provide their workers with vital servicing information.”

The list of Revised Charts

Demounting and Mounting Procedures for Tube-type Truck and Bus Tires Chart

(OSHA 3402) (English: PDF)

Demounting and Mounting Procedures for Tubeless Truck and Bus Tires Chart
(OSHA 3401) (English: PDF)

Multi-Piece Rim Matching Chart
(OSHA 3403) (English: PDF)

Servicing Multi-Piece and Single-Piece Rim Wheels 29 CFR 1910.177 Manual

(OSHA 3421) (English: PDF)


You can also download all of these resources and other publications on OSHA’s Publications page.