Rules + Regs

Fall protection again tops list of OSHA’s most-cited violations

The Occupational Safety and Health Administration announced dangers from falls at construction sites remained the most frequently cited hazard on OSHA’s list of most-cited violations for fiscal year 2019, which ended Sept. 30, 2019. OSHA has not yet released its final citation numbers.

Three other rules related to construction falls are among the top 10 violations—scaffolding, ladders and training.

The Bureau of Labor Statistics said 887 workers died from falls, slips or trips, including 386 construction workers, in fiscal year 2017, which is the most recent year for which BLS numbers are available.

OSHA generally requires construction workers exposed to falls of 6 feet or more to wear protective gear, such as harnesses, or be protected by guardrails and be trained regarding how to avoid falling.

Following are the top 10 most-cited OSHA violations for fiscal year 2019 through Sept. 10, 2019:

  1. Fall protection—general requirements: 6,010 violations
  2. Hazard communication: 3,671 violations
  3. Scaffolding: 2,813 violations
  4. Lockout/tagout: 2,606 violations
  5. Respiratory protection: 2,450 violations
  6. Ladders: 2,345 violations
  7. Powered industrial trucks: 2,093 violations
  8. Fall protection—training requirements: 1,773 violations
  9. Machine guarding: 1,743 violations
  10. Eye and face protection: 1,411 violations

DOL collects record $322 million in back pay during 2019

The Department of Labor’s Wage and Hour Division collected a record $322 million in back wages for workers during fiscal year 2019, according to Bloomberg Law. DOL recovered $304 million during fiscal year 2018.

Most of the collected back pay came from cases in which employers failed to pay time-and-a-half overtime for workers exceeding 40 hours of work in a week—$186 million in recovered wages—or at least the federal minimum wage of $7.25 per hour, or $40 million.

“Through rigorous enforcement and robust compliance assistance, the U.S. Department of Labor is committed to ensuring that workers receive the wages they have earned,” said Secretary of Labor Eugene Scalia in a statement. “These record-breaking numbers top the department’s totals from last year, which also set records, and confirm our ongoing commitment to strong enforcement and to providing employers with the tools they need to comply with the law.”

Cheryl Stanton, the new administrator of the Wage and Hour Division, has been working on organizational and policy changes that could alter how her staff conducts investigations. After revoking her staff’s previously delegated enforcement power earlier this year until she could approve each action, Stanton has been restoring certain authorities to her employees, including the ability to subpoena companies for evidence in wage-hour investigations.

“We are delivering more back wages for workers than ever before, and we are steadfastly eliminating any unfair economic advantage employers may try to gain by skirting the rules,” Stanton said in the DOL statement. “We are protecting those who do the right thing, pay their employees what they have legally earned and operate in compliance.”

Colorado law departs from minimum wage preemption

A new law allows cities and counties in Colorado to set minimum wage requirements higher than the state minimum, which is $11.10 per hour.

In 1999, Colorado was one of the first of 26 states to adopt a law to preempt local minimum wage ordinances, preventing cities and counties from raising the minimum wage for local businesses; most of the other states adopted preemption laws during the 2010s.

The change in Colorado law is uncommon as states increasingly seem to be blocking local employee mandates involving not only minimum wage but also paid leave, prevailing wage and other factors. However, the Colorado law still partially restricts local authority, limiting annual increases to 15% or $1.75 per hour—whichever is greater.

Advocates say an increased minimum wage helps ensure workers can support themselves and their families. Opponents say higher minimum wages—especially when implemented locally—negatively affect economic growth and can lead to fewer jobs.

Preemption laws have been proposed recently in various states regarding a range of employment policies. Maine adopted legislation in 2019 to preempt local paid leave requirements, and Texas and Florida proposed legislation that would have broadened existing preemptions of employment-related mandates. The proposed legislation in Texas and Florida failed because of concerns the bills would harm local protections against LGBT discrimination.

Additionally, in recent years, states such as Illinois, New Mexico and Oregon banned local “right to work” ordinances, laws preventing employment agreements requiring all of a company’s employees to be dues-paying union members.

As the 2020 elections approach, it is expected individuals on both sides of the preemption debates will be watching for states’ preemption proposals.

Appeals court rules on injured worker case

On Oct. 30, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled a worker who was injured when a customer struck him with a company vehicle should not be excluded from his employer’s liability insurance.

The liability policy excludes coverage of employee injuries that qualify as workers’ compensation claims; however, the Fourth Circuit found the exclusion didn’t apply in this case and reversed the decision of a lower court.

Greg Ball, an employee of Milton Hardware in West Virginia, was seriously injured when he and other employees were performing construction work at a customer’s home. When the customer was given permission to move one of the company trucks to unblock his driveway, he hit Ball with the truck.

When Ball sought coverage for his injuries under his company’s insurance policy, he was denied by insurer United Financial Casualty Co., Cleveland, which cited the policy’s workers’ compensation exclusion.

However, the Fourth Circuit said it was not a workers’ compensation claim because the driver was a third party and not the employer or another employee. The policy provides coverage for anyone driving a company vehicle with the company’s permission.

The court also rejected a related exclusion in the policy that bars bodily injury claims by workers against their employer, saying a provision of West Virginia law overrides that exclusion; state law requires all automobile liability policies to cover anyone who drives the vehicle with consent, with the only legal exception being for workers’ compensation claims.

Trump rescinds Obama order regarding federal contractor priority

On Oct. 31, 2019, President Trump rescinded an Executive Order issued by former President Obama that gave existing federal contract workers priority for jobs on the next contract.

Signed by former President Obama in January 2009, the Executive Order required that qualified workers on a federal service contract who would otherwise lose their jobs because of completion or expiration of a contract be given the right of first refusal for employment with the subsequent contractor.

Nichole Atallah, partner in the labor and employment practice group at Washington, D.C.-based Piliero-Mazza law firm, told Bloomberg Law she does not expect to see significant effects on the workforce regarding the change because “most contractors hire the incumbent workforce regardless of the Executive Order.”

When Trump took office, one of his goals was to roll back the Obama administration’s regulatory actions, and many federal contractors expected Trump to reverse several Executive Orders that created new labor and employment obligations.



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