significant developments in employee-related risk ......2016 iadc contracts & risk management...
TRANSCRIPT
2016 IADC Contracts & Risk Management Conference
Significant Developments in Employee-Related Risk Management: Joint Employers and Temporary Workers
Ken Bullock Munsch Hardt Kopf & Harr P.C.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
Browning-Ferris Indus. of California, Inc., 362 NLRB No.
186 (2015).
Q: Was BFI a "joint employer" with its staffing company?
A: Yes, because BFI had "indirect control" and reserved
contractual authority over borrowed employees.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
Browning-Ferris Indus. of California, Inc., 362 NLRB No.
186 (2015).
• On Appeal: BFI argues NLRB ignored prior precedent
finding "joint employers" only where "direct and immediate
control."
• Final briefing due in November.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
Browning-Ferris Indus. of California, Inc., 362 NLRB No.
186 (2015).
• Implications beyond collective bargaining:
o Franchisees/Franchisors.
o Contractors/Subcontractors.
o OSHA Enforcement.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Multi-Employer Enforcement Policy
• Existing OSHA Policy for issuing Citations to multiple
entities.
• In past, not frequently applied.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Multi-Employer Enforcement Policy
• Step 1: Categorize Possible "Employers" o Creating – create hazardous condition.
o Exposing – expose to hazardous condition.
o Correcting – Responsible for correcting condition.
o Controlling – Supervisory responsibility.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Multi-Employer Enforcement Policy
• Step 2: Did Each Meet Its Responsibilities: o Creating?
o Exposing?
o Correcting?
o Controlling?
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Multi-Employer Enforcement Policy
• Step 3: Issue Citation and Notification of Penalty ….
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Focus on Joint Employers
• Recent focus on "joint employers" in OSHA investigations.
• Targets borrowing and lending employers.
2016 IADC Contracts & Risk Management Conference
What Has Changed?
OSHA Focus on Joint Employers
• OSHA policy guidance documents target "temporary
workers."
• Responsibilities: o Recordkeeping and reporting?
o Safety?
2016 IADC Contracts & Risk Management Conference
What Has Changed?
Yates Memoranda
• September 2015 Memo: "Americans should never believe
… that one's criminal activity will go unpunished simply
because it was committed on behalf of a corporation."
2016 IADC Contracts & Risk Management Conference
What Has Changed?
Yates Memoranda
• December 2015 Memo: Federal prosecutors should look
for ways to charge a variety of felonies in routine worker
safety cases.
2016 IADC Contracts & Risk Management Conference
Why Is It Important?
Changes in Industry Workforce
• Flexible Staffing: Increased reliance on temporary workers.
• Attempted Outsourcing: Compliance issues.
2016 IADC Contracts & Risk Management Conference
Why Is It Important?
Changes in Litigation Efforts
• Fair Labor Standards Act: Wage, hour and exemptions.
• Misclassification: Employee or independent contractor?
2016 IADC Contracts & Risk Management Conference
What Can Employers Do?
Insurance Options
• Staffing Company Coverage?
• Borrowing Employer/Host Coverage?
2016 IADC Contracts & Risk Management Conference
What Can Employers Do?
Contracting Options
• Allocation of responsibilities for worker safety?
• Indemnification?
• Enforceability?
2016 IADC Contracts & Risk Management Conference
What Else Is Coming?
OSHA Final Rule on Electronic Reporting
• Employers must submit electronic recordkeeping to OSHA.
• Data published online.
2016 IADC Contracts & Risk Management Conference
What Else Is Coming?
OSHA Final Rule on Electronic Reporting
• Anti-Retaliation Measures: o General prohibition on Safety Incentive Programs.
o General prohibition on Post-Incident Testing.
2016 IADC Contracts & Risk Management Conference
How to Respond?
Dealing with OSHA Inspections
• Priorities: o Imminent Danger Assessment.
o Catastrophe/Fatality Investigation.
o Worker Complaints.
o Targeted National Emphasis Programs.
2016 IADC Contracts & Risk Management Conference
How to Respond?
Dealing with OSHA Inspections
• CSHO Must: o Present credentials.
o Define scope.
o Allow employer representative to observe.
2016 IADC Contracts & Risk Management Conference
How to Respond?
Dealing with OSHA Inspections
• CSHO May:
o Observe, photograph and sample.
o Interview employees and take statements.
o Review records and request documents.
2016 IADC Contracts & Risk Management Conference
How to Respond?
Dealing with OSHA Inspections
• Closing Conference: o Note violations and nature.
o Identify possible abatement measures/deadlines.
o Non-retaliation rules.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations
• Citation and Notification of Penalty: o Violations and Penalties.
o Abatement.
o Posting/Notification.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations • "Serious" – Substantial probability of death or serious harm.
• "Other than Serious" – Probably not cause death/harm.
• "De Minimis" – No immediate concern.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations
• "Repeated" – If cited within 5 years for substantially similar
violation.
• "Willful" – Intentional disregard or plain indifference.
o Possible criminal charges.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations
• Informal Conference: o Explain violations/standards.
o Discuss abatement.
o Negotiate settlement.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations: Agree or Contest?
• Accept or Contest? o Notice of Contest served within 15 working days.
o Sec. of Labor files Complaint within 20 days.
o Employer files Answer within 20 days.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Citations: Contest
• Defenses: o Isolated Employee Misconduct.
o Impossibility/Greater Hazard.
o Infeasibility of Abatement.
o Dispute Multi-Employer Status.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Inspections and Citations: Practical Guidelines
• Be Proactive: Pre-Inspection Planning o Identify standards.
o Prepare for Unscheduled Inspections.
o Inspection Response Team.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Inspections and Citations: Practical Guidelines
• Inspection Response: o Request time for counsel or HSE to accompany.
o Consider demanding warrant.
o Shadow CSHO and duplicate.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Inspections and Citations: Practical Guidelines
• Inspection Interviews: o CSHO can interview employees privately.
o Employee can request counsel.
o No requirement for signed statement.
2016 IADC Contracts & Risk Management Conference
How to Respond?
OSHA Inspections and Citations: Practical Guidelines
• Informal Conference is critical: o Only chance to discuss Citation informally.
o Discuss applicability of standards.
o Abatement assistance.
o Negotiate settlement.
2016 IADC Contracts & Risk Management Conference
Questions?
Ken Bullock
Munsch Hardt Kopf & Harr P.C. [email protected]
713-222-4061