OSHA's Battle Against Hotel Operators Continues

By Paul H. Burmeister

The OSHA/Hyatt Hotels saga continued with a recent exchange of letters between OSHA and the hotel chain’s attorney.  In April, OSHA issued a “5(a)(1) letter” to the CEO of Hyatt Hotels, indicated that OSHA believed there were ergonomic risks associated with the daily work activities of the company’s housekeeping staff. The letter put the hotel chain “on notice” that while OSHA did not believe that a “recognized hazard” existed at the time of the inspection, such that a General Duty Clause citation should issue, if the same hazard was later identified in a subsequent inspection, OSHA would assert that this letter made the hazard a recognized one, for purposes of enforcement. Therefore, if the hotel chain does not follow OSHA’s recommendations, subsequent inspections would likely result in a citation. As well publicized as this battle has been, OSHA would likely take the same position with other hotel operators. In other words, the entire industry may now be “on notice.”

The OSHA letter culminated what was nearly a year-long OSHA investigation of Hyatt hotels across the country. The inspection activity was prompted in 2010 by multiple employee complaints filed in concert by housekeepers (through their Union, Unite HERE) across the country complaining of ergonomic injuries related to bending, stooping, twisting, and lifting while cleaning and making beds.

Hyatt responded to the OSHA letter through counsel and pointed out that despite the numerous employee complaints, OSHA did not have the evidence to issue one citation to the hotel chain. In its response letter, Hyatt also reiterated its serious concern that the housekeepers' union was using the Agency to drive its organizing efforts in the hospitality industry.

Hotel employers should be on alert for OSHA inspections at their properties. As OSHA inspections involve interaction with local management, training at the property level is key to successfully managing an OSHA inspection. Hotel operators with more than one location should also be aware of OSHA’s efforts to amplify the impacts of a single enforcement action throughout an entire corporate enterprise and to pursue follow-up inspections at related facilities in search of high dollar Repeat violations. Accordingly, OSHA activity at one of your facilities should be clearly communicated to other similarly-situated facilities, and any of OSHA’s findings should be corrected throughout the enterprise.

D.C. Circuit Limits OSHA's Recordkeeping "Madness"

By Eric J. Conn and Casey M. Cosentino

In what has been good news for hospitality employers, the past month has been a rough stretch for OSHA in terms of Injury and Illness Recordkeeping enforcement.  As we reported last month on the OSHA Law Update Blog, in March, the Seventh Circuit beat back OSHA’s attempt to expand the meaning of “work related” for purposes of determining whether an injury or illnesses is recordable.  Then last month, the District of Columbia Circuit further and dramatically limited OSHA’s authority to cite Recordkeeping violations, by insisting that the injury that is the subject of the recordable case actually have occurred within 6-months and 8 days of the citation. 

In this most recent development, the U.S. Court of Appeals for the D.C. Circuit strictly applied the 6-month statute of limitations for issuing violations under the Occupational Safety and Health Act (“OSH Act”). See AKM LLC, d/b/a Volks Constructors v. Sec’y of Labor, No. 11-1106 (D.C. Cir. Apr. 6, 2012).  By way of background, the OSH Act states that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).  The OSH Act further provides that “[e]ach employer shall make, keep and preserve” records of workplace injuries and illnesses “as the Secretary . . . may prescribe by regulation.” 29 U.S.C. § 657(c)(1).  Pursuant to this delegated authority, the Secretary of Labor has issued regulations that require employers to:

1.      Record work-related injuries and illnesses on OSHA’s 300 Log and 301 Report “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred;”

2.      Prepare a year-end summary report of all recordable injuries during the calendar year on OSHA’s 300A Summary Form; and

3.      Maintain or save the 300 Logs, 301 Reports, and 300A Summary Forms for 5 years.

In the Volks case, OSHA issued Volks Constructors (“Volks”) citations on November 8, 2006, for allegedly failing to maintain complete injury and illness records from 2002 through 2006.  Volks was not cited, however, for failing to save the logs and forms for the requisite 5 years.  Rather, the violations related to Volks not recording or not properly recording individual recordable injuries or illnesses on the 300 Log.

Volks moved to dismiss the citations as untimely because none of the referenced injuries occurred within the 6 months preceding the citations.  In opposition, OSHA contended that Volks’ duty to maintain injury and illness logs and forms for 5 years tolled the 6-month statute of limitations.  The administrative law judge assigned to the case sided with OSHA, and the Occupational Safety and Health Review Commission (“OSHRC”) later affirmed the ALJ’s decision. OSHRC concluded that because of the duty to preserve the log for 5 years, Volks’ failure to record the employee injuries and illnesses constituted “continuing violations,” which extended the 6-month statute of limitations until six months after the end of the 5-year retention period.

On appeal, the D.C. Circuit reversed and vacated the citations. In doing so, the D.C. Circuit found that the OSH Act’s express language rendered the citations untimely because every alleged failure-to-record violation and every workplace injury that gave rise to the violations “occurred” more than 6 months before the citations were issued.  The Court stated that, under the Secretary’s argument, “the statute of limitations Congress included in the Act could be expanded [infinitely] if, for example, the Secretary promulgated a regulation requiring that a record be kept of every violation for as long as the Secretary would like to be able to bring an action based on that violation. There is truly no end to such madness.”  The Court further noted that “[n]othing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.”

Under the Volks decision, OSHA may only cite employers for failing to record a work-related injury from the 8th day after an unrecorded injury occurred until 6-months and 8 days after the injury.  The precedential value of the Volks decision is significant because the decision was issued by the D.C. Circuit, which has jurisdiction to hear any case appealed from the OSH Review Commission.

The timing of the decision is also noteworthy because it coincided with the expiration of OSHA’s two and a half year long Recordkeeping National Emphasis Program, an enforcement program that resulted in hundreds of Recordkeeping-focused inspections.  Alleged Recordkeeping violations were found and cited by federal OSHA in two-thirds of the inspections carried out under the Recordkeeping National Emphasis Program, and yielded nearly 1,000 total Recordkeeping violations.  At the time the inspections were conducted and citations issued, OSHA was continuing its practice of citing employers for Recordkeeping issues as old as five years.  We understood that OSHA had intended to renew the Recordkeeping NEP.  Perhaps the Volks decision lead to an early retirement (or temporary hold) on that program.

Regardless of the expiration of the NEP and this new time crunch imposed by the Volks decision, hospitality employers should expect OSHA to find new ways to continue citing Recordkeeping violations, such as by amending its regulations or requiring electronic submission of Injury and Illness records to OSHA.

New HazCom Standard: The Most Frequently Cited Standard in the Hospitality Industry Gets a Facelift

By Eric J. Conn and Casey M. Cosentino

For years, OSHA’s Hazard Communication Standard (“HazCom”) has been the standard most frequently cited against hotel and other hospitality employers.

In FY 2011 37 hotel companies were cited for violations of the HazCom Standard, including, primarily, alleged failures to:

(1) maintain a written Hazard Communication Program;

(2) ensure each container of hazardous chemicals (such as cleaning agents) is labeled, tagged, or marked;

(3) maintain a complete set of Material Safety Data Sheets (“MSDS’s”) for each hazardous chemical at the workplace; and

(4) train employees in the written program and how to use MSDS’s

This important OSHA Standard, that has long impacted hospitality employers, received a major facelift last month. On March 26, 2012, OSHA issued a final rule that integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s Hazard Communication Standard (“HazCom”). 

The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States. According to Assistant Secretary Michaels, “OSHA's 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule. Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

1.       Hazard Classification: The new HazCom Standard has specific criteria for classifying health and physical hazards into a hazard class and hazard category. The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).

2.       Mixtures: Evaluating health hazards of mixtures is based on data for the mixture as a whole. If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures. 

3.       New Label Requirements: For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements. Product identifiers and supplier information are also required.  

4.       Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.          

5.       Non-Mandatory Threshold Limit Values in SDSs: Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).

6.        Information and Training: Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013. 

7.       Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:

Effective Date

Requirement(s)

Who

December 1, 2013

Train employees on the new label elements and SDS format.

Employers

June 1, 2015

December 1, 2015

Compliance with all modified provisions of the final rule, except:

The Distributor shall not ship containers labeled by the chemical manufacturer or importer unless it is a GHS label.

Chemical manufacturers, importers, distributors, and employers

June 1, 2016

Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.

Employers

Transition Period to the Effective Dates Noted Above

Comply with the current HazCom Standard, the amended HazCom Standard, or both.

Chemical manufacturers, importers, distributors, and employers

 

8.       Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”). HNOC’s need only be disclosed on the SDS and not on labels.Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category. Rather, these chemicals are addressed individually in the new Standard. 

9.       No Preemption of State Tort Laws: The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn. 

10.    Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs. Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.

 

Text Free Zone: OSHA's Distracted Driving Initiative Kicks Into Gear

By Casey M. Cosentino and Eric J. Conn

“Texting while driving” is an epidemic in America, which has prompted forty-two states and the District of Columbia to ban (completely or partially) this conduct for drivers.  Here’s a map of the U.S. states that have enacted some ban on texting while driving.  Studies suggest that texting while driving distracts drivers’ cognitive focus and removes their eyes from the road and hands from the wheel.  It is not surprising, therefore, that distracted driving is attributed with sixteen percent (16%) of all traffic fatalities in 2009.

The consequences of texting while driving are also seen in work-related accidents, as motor vehicle accidents are among the leading cause of worker fatalities.  Due to the political attention that texting while driving is garnering and the high number of employee deaths caused by motor vehicle accidents, OSHA has launched a Distracted Driving Initiative in partnership with the Department of Transportation to combat this safety issue.

According to OSHA, sending and reading text or email messages is a workplace safety hazard that employers are legally obligated to prevent under the OSH Act’s General Duty Clause.  For instance, OSHA finds that workers are exposed to a hazard when an incoming text from a supervisor or an urgent email request from a client draws their focus away from the road.   Notably, formal or informal incentive programs (i.e., monetary bonuses for making a certain number of deliveries per hour or day) are the heart of OSHA’s Distracted Driving Initiative.  The agency believes the root cause of texting while driving is employers’ policies that leave employees no option but to text or email on the go.   According to OSHA, therefore, employers violate the General Duty Clause when their policies or practices:

1.         Require texting/emailing while driving;

2.         Create incentives that encourage or condone texting/emailing while driving; or

3.         Are structured in such a way that texting is a practical necessity for workers to carry out their job duties.

When OSHA determines that employers’ policies contribute to cell-phone related accidents, it will issue General Duty Clause citations, which carry maximum penalties of $70,000 per Willful or Repeat violation or $7,000 per Serious violation.  As a result of the Distracted Driving Initiative, employers should implement a workplace safety culture that explicitly prohibits texting while driving on the job or in company-owned vehicles.  Indeed, employers should draft or revise cell-phone usage policies to declare all vehicles “text-free zones,” including posting of such signage in company vehicles.

Effective policies should alert managers, supervisors, and employees that the company neither requires nor tolerates sending or reading text/email messages while driving.  The policies should also stress safe communication practices and incorporate procedures that eliminate financial or other incentive programs that encourage or require texting while driving in order to carry out job duties.  Additionally, employers should review such policies during training, education sessions, and new hire orientation programs.

OSHA has promised swift action upon learning of distracted driving accidents or receiving credible complaints from employees that their employers require or organize work so that texting while driving is a practical necessity.  OSHA is forthright in its position on distracted driving, and it will not hesitate to issue citations and penalties where necessary.  Given OSHA’s aggressive enforcement record over the past three years, we expect the agency to be on the lookout for a poster-child employer to use as an example for others under the new Distracted Driving Initiative.

U.S. Department of Labor Targets Hospitality Industry Through New iPhone/iPad Applications

By:  Casey Cosentino

There is an on-going trend by the U.S. Department of Labor (“DOL”) to leverage popular technology to increase public and consumer awareness of the laws and regulations it enforces. Indeed, the DOL is continually exploring creative ways to share information with the public using the fastest and most-wide reaching means available. Through technology, the DOL is intentionally providing employees and consumers with enforcement data about companies, particularly hotels and restaurants, so that they can make informed employment and patronage decisions. 

In July 2011 the DOL launched an “informAction” Smartphone application (“app”) challenge. Third-party developers were asked to develop an innovative iPhone/iPad app using compliance and inspection data on hotels, motels, restaurants and retail stores from the Wage and Hour Division (“WHD”) and the Occupational Safety and Health Administration (“OSHA”). The DOL sought an app that would empower workers and consumers to make educated decisions about what hotels, motels, restaurants, and retail stores to seek employment from and to frequent. 

The DOL announced the winning app, titled “Eat Shop Sleep,” on October 27, 2011. This app cleverly combines OSHA and WHD enforcement data with consumer rating sites like Yelp and other tools like Google maps. As advertised on iTunes, the app allows users to “search for places to eat, shop & sleep and then read customer reviews as well as health, safety & labor highlights as a consumer in the know.” Once downloaded, users can view their current location, or any location in the United States, on Google maps; nearby hotels, restaurants or retail stores being investigated by the DOL are “flagged.” When users click on a “flag,” they learn, for example, the number of wage and hour or safety and health violations the establishment committed, as well as any back wage or penalties owed. This information is neatly packaged with reviews of the establishment.

Smartphone mobile apps like “Eat Shop Sleep” allow the DOL to influence public opinion with its enforcement data at minimal cost. With the DOL placing its enforcement data in the hands of the public (literally), hotel operators cannot afford to have a WHD or OSHA record. In today’s digital age, hotel operators cannot believe that wage and hour or health and safety violations disappear after they sign a check to the DOL. The public’s widespread access to the Internet keeps WHD and OSHA records alive and readily accessible. The “Eat Shop Sleep” app also evidences the DOL’s aggressive efforts to shame publically hotels, motels, restaurants, and retail stores that are not compliant with its laws and regulations. Undoubtedly, the hospitality industry can expect the DOL to continue to adopt popular technology for its advantage.   

Hotel Housekeepers File OSHA Complaints Nationwide

By: Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE.

The housekeepers allege injuries arising from their daily room quotas and argue that cleaning rooms and lifting heavy mattresses lead to accidents and workplace injuries. The complaints allege that workers are discouraged from reporting injuries due to fear of retaliation and that monetary rewards for having a safe workplace discourages complaints. The housekeepers recommend several solutions, including changes to fitted sheets, mops and other equipment used to clean a room, as well as a cap on their daily room quota.

Hospitality employers must be on alert of similar OSHA complaints at its properties. OSHA has begun an aggressive enforcement campaign against employers when it unveiled its “Severe Violator Enforcement Program” (“SVEP”) earlier this year. Under SVEP, OSHA will target those employers who disregard their obligations through willful, repeated, or multiple violations. This will lead to a significant increase in OSHA inspections at workplaces that not only have a history of health and safety violations, but also allows for nationwide inspections of related workplaces. Thus, if OSHA believes that the violation at a particular hotel is indicative of a pattern of non-compliance, then it will launch investigations into other hotels owned or operated by the same company. This company “profiling” should put all hotels on high alert.

In light of the significant penalties and the new focus on enforcement from the government and labor unions, it is important for hotels to take worker safety issues seriously and to have a plan in place should OSHA launch an investigation into their respective properties. Additionally, because OSHA investigators are more likely to approach local managers at each property, it is important that these managers receive proper training on OSHA regulations and how to comply with an OSHA investigation.

Accordingly, hotels should take the necessary steps now to ensure compliance with applicable federal and state requirements through attorney-client self-audits.

EBG Workshop for Hospitality Employers in NY on Oct. 28

EBG is holding its annual NY briefing for clients and friends on Oct. 28. This full-day program will feature a special, two-hour workshop just for employers in the hospitality and retail industries, updating the many recent and significant labor and employment law developments affecting the industry. We will provide real-world guidance on how to manage the risks your company faces from increasingly aggressive plaintiffs' lawyers and government investigators who have openly and unabashedly targeted the industry.

Topics on the workshop agenda include:
 

  • Wage and hour class actions and government investigations: The prime targets are the misclassification of employees, the failure to provide or pay for meal and rest periods, tip pooling, and the failure to reimburse for business expenses, including uniforms. These pitfalls are eminently avoidable - learn how.
  • Union organizing: UNITE HERE, SEIU, and other unions are continuing to aggressively target employees in the hospitality industry and they are newly emboldened by an increasingly union-friendly legal and political environment. Understanding why employees reach out for, or are receptive to, a union is the key to remaining union-free.
  • Leave laws and other hot-button issues: ADA and FMLA requests – and, often, legal action – tend to increase during tough economic times, as do discrimination and retaliation charges.  We will address the most common issues faced by hospitality employers in these and a host of other areas, including OSHA and immigration.
     

Come for the workshop; stay for the day! The workshop for hospitality employers is part of a day-long briefing covering a wide range of labor and employment challenges all employers are facing these days. We invite you to view the full agenda and join us for the entire program.