OSHA Review Commission establishes precedent

The Occupational Safety and Health Administration (OSHA) Review Commission has ruled that under the Occupational Safety and Health Act, an employer not only must provide eye protection for workers, but it also must ensure employees wear the protective equipment.

On Jan. 10, 2011, an OSHA compliance officer conducted an inspection of Custom Built Marine Construction at a job site where the company was renovating a boat ramp. The compliance officer saw a Custom Built Marine Construction employee using an electric jackhammer to chip away part of a concrete bulkhead while his supervisor stood nearby observing the work. The compliance officer observed pieces of concrete flying in the air while the employee operated the jackhammer, and neither the employee nor the supervisor were wearing eye protection; however, two pairs of protective eyewear were available on-site.

Following the inspection, OSHA issued the company a citation alleging a serious violation of 29 C.F.R. § 1926.102(a)(1), the construction industry standard for eye and face protection equipment, which states: "Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents."

The commission relied on its 1983 Clarence M. Jones d/b/a C. Jones Company decision in which it rejected the contention an employer that made goggles available to employees on request had fully complied with 29 C.F.R. § 1926.102(a)(1).

In the case, Custom Built Marine Construction argued that by making eye protection available to employees on-site, it complied fully with the OSHA eye and face protection standard. The review commission ruling reversed a previous administrative law judge's decision in favor of the employer, which held "the word 'provide' is not ambiguous and … is commonly understood to mean 'furnish' or 'make available.'"

However, the review commission relied on language from various subparts of Part 1926 Section 29, which "obligates an employer to ensure the use of such equipment when an employee is exposed to a potential eye hazard." The review commission noted the employer's knowledge of the hazard was demonstrated by the presence of a supervisor on-site and upheld the original OSHA $2,400 citation for a serious violation. In addition, the review commission determined Custom Built Marine Construction was not entitled to fine reductions based on prior history or good faith, but it did allow for a 40 percent reduction because of its small size.

Custom Built Marine Construction could appeal the decision to the U.S. Court of Appeals for the 11th Circuit.

Report examines BIPV market growth

Pike Research, a segment of Chicago-based Navigant Consulting Inc.'s Energy Practice, has released "Building Integrated Photovoltaics," which examines the global markets for building integrated photovoltaic (BIPV) and building applied photovoltaic systems.

According to the report, BIPV capacity worldwide will grow from just more than 400 megawatts (MW) in 2012 to 2,250 MW in 2017, more than a five-fold increase. The study also says the annual value of the BIPV market will quadruple during the next five years, growing from $606 million in 2012 to more than $2.4 billion in 2017.

The report includes a comprehensive analysis of demand drivers and economics, technology issues and key industry players. It also includes detailed profiles of 53 companies in the sector and a detailed review of current government policies and financial incentives.

For those seeking more information, an executive summary of the report is available for download at www.pikeresearch.com/research/building-integrated-photovoltaics.

IRS updates tax withholding tables

The Internal Revenue Service (IRS) has released updated income tax withholding tables for 2013 to reflect changes made by Congress. The updated tables show the new rates in effect for 2013 and supersede the tables issued Dec. 31, 2012. The newly revised version of the IRS' Notice 1036 contains the percentage method income tax withholding tables and related information employers need to implement the changes.

As of Feb. 15, employers should have begun using the revised withholding tables and correcting the amount of Social Security tax withheld. For any Social Security tax under-withheld before Feb. 15, employers should make the appropriate adjustment in employees' pay no later than March 31.

Employers and payroll companies will handle the withholding changes, so employees typically won't need to take additional action, such as completing new W-4 withholding forms.

States raise minimum wage requirements

Ten states increased their minimum wage requirements Jan. 1: Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Rhode Island, Vermont and Washington. According to the National Employment Law Project (NELP), the raises will result in an additional $190 to $510 per year for the average worker.

The increases ranged from 10 cents per hour in Missouri, where the minimum wage now is $7.35 per hour, to 35 cents in Rhode Island, where the minimum wage now is $7.75 per hour.

According to an analysis by the Economic Policy Institute, the increases will benefit 995,000 low-paid workers; 855,000 workers are affected directly as the new rates exceed their previous hourly pay, and 140,000 workers will receive an indirect raise as pay scales are adjusted upward to reflect the new minimum.

According to NELP, as of Jan. 1, 19 states and the District of Columbia have minimum wage rates higher than the federal rate of $7.25 per hour, which translates to slightly more than $15,000 per year for a full-time minimum wage worker.

NLRB recess appointments overturned

On Jan. 25, the U.S. Court of Appeals for the District of Columbia ruled President Obama's recess appointments of three members to the National Labor Relations Board (NLRB) that were made Jan. 4, 2012, are unconstitutional. The decision comes in response to litigation brought by the Coalition for a Democratic Workplace challenging the recess appoints as unconstitutional given Congress was not in recess at the time of the appointments. NRCA has strongly supported this litigation and sees this as a significant victory.

The government could appeal this decision to the U.S. Supreme Court. However, unless this decision is overturned on appeal, NLRB will have only two valid members until new board members can be appointed and confirmed by the Senate through the typical confirmation process. Until this happens, NLRB will not have a quorum of three board members needed to issue new regulations and rule on many other matters that come before the board. As a result, the ruling likely will constrain NLRB in its regulatory actions for some time.


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