Archive for April, 2012

Unemployed Status – The New Protected Class

Friday, April 27th, 2012

While employment rates show a general trend toward improvement, employers still find themselves inundated with candidates for open positions. So much so that some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply.

In light of this recent development in job advertisements, Congress and several state legislative bodies have started to amend their anti-discrimination laws to add “unemployed status” as a protected class.

Read the full article here:

Unemployed status – the new protected class – Lexology.

Respiratory Protection for Undercoating Operations

Friday, April 27th, 2012

If your business offers, or is considering offering undercoating and rustproofing services, then it is important to remember that the chemicals involved in the process generally require the use of a respirator- or even a full supplied air system.

Information about safe product application, respirators and other forms of required PPE, is available on the product’s Material Safety Data Sheet (MSDS) for the undercoating or rustproofing product. It is a great resource that should always be referenced before allowing employees to apply the product to vehicles. Using this information keeps the employee safe, and it insulates your business from regulatory fines, workers’ compensation claims, and lawsuits.

If you are a KPA client, you can access the Automotive Industry MSDS database including many undercoating and rustproofing products by logging in your mykpaonline account.

Read more about respiratory protection for undercoating operations.

NLBR Postpones Posting Requirement for Employee Rights Notice

Wednesday, April 25th, 2012

As of April 17th, 2012, the deadline for  employers to post the Employee Rights Notice has been postponed due to legal action. The April 30 deadline is now on hold pending appeal by the National Labor Relations Board (NLRB) in response to a ruling by the Court of Appeals for the District of Columbia Circuit.  The Court  enjoined the National Labor Relations Board from enforcing a regulation that would have required most private sector employers in the United States to post a notice of employee labor law rights beginning April 30 (Nat’l Ass’n of Mfrs. v. NLRB, D.C. Cir., No. 12-5068, injunction pending appeal 4/17/12).

In response, NLRB announced its regional offices will not implement the disputed rule, but the agency will defend the rule in the D.C. Circuit and plans to appeal an adverse ruling that was issued April 13 by the U.S. District Court for the District of South Carolina.

“We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law,” Chairman Mark Gaston Pearce said in a statement released by NLRB.
Rule Covers Employers Under NLRB Jurisdiction.

This is the third time the NLRA posting deadline has been set, and then delayed.  If you have already posted the notice or are using a poster that contains the notice you do not have to remove the notice or the poster to  remain in compliance with NLRB requirements at this time, as this posting rule has not been repealed, just delayed.  Employers may also  chose to remove the notice until the final ruling.

OSHA Reminds Employers to Post Injury/Illness Summaries

Tuesday, April 17th, 2012

Employers who are required to keep the OSHA Form 300 Injury and Illness log must post OSHA’s Form 300A from Feb. 1 to April 30, 2012 in a common area wherever notices to workers are usually posted. The summary must list the total numbers of job-related injuries and illnesses that occurred in 2011. All establishment summaries must be certified by a company executive.

Copies of the OSHA Forms 300, 300A and 301 are available for download on the OSHA Recordkeeping Web page. See OSHA’s Recordkeeping Handbook for more information on posting requirements for OSHA’s Form 300A.

California Employers Don’t Have to Require Lunch Breaks

Monday, April 16th, 2012

The California Supreme Court has ruled that employers only have to provide meal periods to workers, they do not have to make sure that employees actually take them.

This decision is part of an active class-action lawsuit against Brinkers International Inc, which owns Chili’s and Romano’s Macaroni Grills.

In 2008, a California appeals court sided with Brinker, finding that the restaurant company only had to “make available” the meal and rest breaks, but not “ensure” they were taken. The state’s Supreme Court agreed that employers do not have to police meal breaks but do need to relieve workers of duties at those times.

A commentary about the decision at CBS’s MoneyWatch summed up the ruling as a win-win for employers and workers alike:

“Why is this ruling good for employees and employers alike? Because it treats everyone like grown-ups. Companies aren’t required to pay their employees for breaks of 20 minutes or longer, but are required to pay for shorter breaks… Of course, if an employee does not take a break, the employer must pay for the time worked. (And you can certainly be fired for working off the clock.) ”

While the lawsuit is still working its way through the system, this decision is a welcomed clarification for employers navigating the ambiguities around break and rest periods for wage workers in California.

How to Handle an OSHA Inspection

Friday, April 13th, 2012

OSHA inspections are on the rise. This video by KPA’s Janet Wimmer covers how to be prepared for an inspection if OSHA shows up on your door today. It includes an overview about the inspection process, which documents you’ll be required to produce, questions you should ask the compliance officer, and how to manage the site visit.

Similar articles

Changes at OSHA Mean Inspections on Rise, With New Hot Items

Managing an OSHA, DOT, EPA or FAA Inspection: Answers to 5 Frequently Asked Questions

What You Need to Know About EPA’s NESHAP 6C

Friday, April 13th, 2012

NESHAP 6C applies to all gasoline dispensing facilities in the US and businesses that own and operate gasoline dispensing equipment. Its goal is to reduce air pollutants that escape during storage tank loading. This is a federal rule that applies in addition to state and local laws. NESHAP 6C sets parameters for equipment, record keeping, reporting, and required performance testing.

EPA published an official instructional video (embedded below) about acceptable methods for controlling gas vapors during the loading of underground storage tanks (stage 1 vapor recovery), along with compliance guidance for different levels of the rule’s requirements.

EPA Stage 1 Vapor Recovery – Gasoline Dispensing Facilities – YouTube.

New Study Shows that Wellness Programs Improve Worker Attendance

Tuesday, April 10th, 2012

A new study of a Dutch company’s workplace health promotion program suggests that such initiatives can help reduce worker absenteeism by up to 20 percent.

According to the study, improvements in worker attendance can be significant in as little time as one year. Researchers believe this is because wellness programs improve workers’ psychological well-being or stress levels relatively quickly, while improvements in healthy lifestyle choices tend to be more long term goals.

Read the full article at EHS Today:

Study: Health Promotion Programs Can Put a Dent in Absenteeism.


Put Your Summer Internship Program to the Test

Tuesday, April 10th, 2012

Recently, several high-profile lawsuits have been filed by former interns, seeking to recover unpaid wages and overtime for their efforts to gain valuable resume-building experience.

What can employers do to avoid these disputes and ensure they are compliant with the law?

If you are hiring interns this summer (or any season), this is a good time to check the Department of labor’s test for unpaid internship programs. Make sure that your internship program’s compensation is fair, and the program is in accordance with the law.


Changes at OSHA Mean Inspections on Rise, With New Hot Items

Friday, April 6th, 2012

It’s no secret that OSHA has aggressively pursued enforcement under President Obama’s Administration. With the closure of fiscal year 2011, OSHA published its semi-annual regulatory agenda, which shows the following trends regarding OSHA’s enforcement initiatives:

  1. The average proposed penalty for “serious” violations more than doubled in 2011.
  2. Regarding “significant” cases (such as investigations producing fines totaling at least $100,000), 215 cases were filed in 2011, which represents a 31% increase compared to 2010. Some “mega-penalty” citations have exceeded $1 million in 2011.
  3. In 2010, OSHA implemented new penalty guidelines that forced higher proposed penalties and allowed fewer reductions for employer size, good faith or history of violations.
  4. OSHA is more aggressively issuing “repeat” citations, which may carry a penalty of $70,000. The rules around this have changed, to the disadvantage of multiple-location businesses, and the time constraint qualifying repeat violations has increased from 3 to 5 years.

When it comes to enforcement, employers can expect to see a continued increase in OSHA activity for 2012. Despite the 100% increase in fine cost per violation, OSHA director Dr. David Michaels recently stated that the higher penalties are still too low when compared to other regulatory agencies.

KPA’s records show that the agency is following through on its intentions. We have seen a sharp increase in frequency of OSHA visits to clients in February, especially in New England states.

Changing Priorities at OSHA

In a January 12, 2012 interview with Bloomberg, OSHA director Dr. David Michaels said that the agency plans to issue rules in 2012 updating regulations concerning hazard communication, confined spaces, and recordkeeping (OSHA 300 Logs). For example the recordkeeping change may include a requirement for auto dealers to maintain OSHA 300 logs as well as vastly increase accident reporting requirements. While it is doubtful that all of these rules would pass into law, this activity indicates a shift in focus from previous hot issues. The agency is also setting sites on modifying Permissible Exposure Limits (PELs) and on Jan. 6, 2012, OSHA sent a letter to the Small Business Administration (SBA), informing the SBA of its intention to convene a Small Business Advocacy Review panel for its I2P2 rule. Panels are convened for all rules expected to have a significant impact on a substantial number of U.S. small businesses and are typically viewed as one of the first steps in the process of implementing a large rulemaking.

While OSHA’s overall budget remains about the same as last year, there are some significant shifting of funds within the agency. The FY 2013 proposed budget includes a 23.5% increase, including 37 new employees, for the agency’s 21 whistleblower protection programs. In other words, the current administration is encouraging workers to come forward with whistleblower complaints and the agency is targeting employers who retaliate against workers who file OSHA complaints. This reinforces the value of effective Safety Committees which promote communication of safety issues between employees and management.

Lower Priorities

In 2013, OSHA will no longer offer its Corporate and Merit Voluntary Protection Program (VPP) to new sites. The VPP star program will also decrease in services.

While OSHA continues to work on potential rulemaking on the musculoskeletal disorder recordkeeping (MDS), the proposed rule has been reclassified as a long-term action with no timetable for completing the rulemaking process. This means that the proposed separate 300 logs for musculoskeletal disorders may not be a requirement for a while, although back cases will continue to be recorded as either injuries or illnesses depending on the condition resulted from an event or exposure.


To sum it up, funds for whistleblower programs are going up, enforcement funding will stay the same, but there is a projected increase in inspection frequency. Some compliance assistance funding will be cut.

Dealerships and service centers should continue to review their ongoing assessments of workplace hazards and ensure that their employees are adequately trained on the numerous regulatory requirements enforced by OSHA. Compliance is still the best defense.