Prima Facie Law Blog : Labor & Employment Lawyer & Attorney : Epstein Becker & Green Law Firm : ADEA, Discrimination, Title VII

By Stuart M. Gerson

The Supreme Court yesterday granted cert. to review the decision of the 6th Circuit in Thompson v. North American Stainless LP, 567 F.3d 804 (6th Cir. 2009) (en banc) which held that a fired employee lacked standing to bring a Title VII retaliation claim as the mere fiance (later husband) of a woman who had brought a discrimination charge of her own. The 10-6 en banc holding of the 6th Circuit requires a plaintiff to have engaged in protected activity by opposing discrimination in his own right or as an actual party to the case of another. Close relational status alone, the 6th Circuit held, is not enough.  Reviewing decisions of other circuits holding likewise, the en banc court stated:

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action. . . . [W]e affirm the judgment of the district court and hold that § 704(a) of Title VII does not create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity.

An interesting aspect of this case is the fact that the Solicitor General, whose recommendations more often than not are followed, had urged the Supreme Court not to take the case, arguing that there was no split in the circuits and that this decision did not inhibit people who actively engage in protected activity from pursuing third-party claims. 

While this case will not be briefed or argued until the next term begins in October, it is interesting to note that the outcome is anything but clear.  Despite many assertions that the Supreme Court has been unfriendly to individuals, it has been willing to take up attenuated retaliation claims such as Burlington Northern & Sante Fe Railway Co. v. White, a 2006 decision imposing Title VII liability on an employer who acts to dissuade a reasonable employee from bringing or aiding a complaint; and Crawford v. Metro. Gov't of Nashville and Davidson County, a 2009 decision reversing the 6th Circuit and holding that a female employee fired after she stated in an internal investigation that she had been sexually harassed had standing to bring a retaliation claim even though she did not initiate the investigation or even file a sexual harassment complaint. 

Given the Court's recent history, the Thompson case bears watching closely.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Is there an emerging interest in knowing a person’s blood type, and not just for necessary medical purposes; but rather, for purposes that raise a host of issues, foremost among them privacy, e.g., predicting a person’s personality and behavioral tendencies, predisposition to disease, and developing dietary and lifestyle formulations suited to their blood type? 

According to a recent BBC report there is such an interest, at least in Japan, where blood type is often used to determine dating compatibility, and by employers to gauge an applicant or employee’s general disposition, interpersonal relations, work style, and personality traits. The report states that some firms even organize work teams by blood type to try to ensure office harmony.  For example, Type As are “dependable and self-sacrificing”, Type Bs “flamboyant free-thinkers, but selfish”, Type Os “decisive and confident”, and Type ABs “well balanced, clear-sighted and logical, but also high-maintenance and distant”.

And here in the United States, many Americans may have heard about the popular diet and lifestyle Eat Right For Your Type Program™, based solely on an individual’s blood type. This program is based on a purported biochemical and physiological uniqueness attached to blood type and also incorporates many of the beliefs embraced in Japan connecting blood type with behavior/personality.

Putting aside the legitimacy of the underlying “science”, employers in America should be aware that considering a person’s blood type could potentially trigger issues under the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of that law, which became effective in November 2009, generally prohibits employers from acquiring or using a person’s “genetic information” in a way which adversely affects the terms or conditions of employment. In March 2009, the EEOC proposed GINA implementing regulations which would add Part 1635 to Title 29 of the Code of Federal Regulations. The interim regulations are still at the rule proposal stage.

What is “Genetic Information” Under GINA?

Under Section 201 of GINA, genetic information is defined as information about “genetic tests” of an individual or of an individual’s family member, or the manifestation of a disease or disorder of an individual’s family member. “Genetic test”, in turn, is defined as any “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes”. The statute specifically exempts any analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes from the definition of “genetic test”.

Section 1635.3 of EEOC’s proposed GINA regulations and section-by-section analysis essentially reiterates the statutory definition of genetic information and genetic testing, but identifies certain analyses as being excluded from the definition of genetic tests:

• a medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites
• testing for the presence of alcohol or drugs. (However, a test to determine whether an individual has a genetic predisposition for alcoholism or drug use is a genetic test.)
• a test for infectious and communicable diseases that may be transmitted through food handling
• routine tests such as complete blood counts, cholesterol tests, and liver-function tests

Is Blood Typing “Genetic Information”?

Although the science of genetics is beyond the ken of this blog, the short answer may be “yes” because a person’s blood type is inherently genetic with distinct genotypes assigned to blood type. There are thirty recognized blood grouping systems, one of the most popular and utilized systems being the ABO blood typing (Type A, B, AB, O) and Rh factor system (Rh-positive or Rh-negative). ABO is the international gene symbol for the ABO gene with specific chromosomal mapping.  

According to a geneticist at Stanford School of Medicine:

There are two main genes. One gene is for the ABO type. This gene codes for a protein that is on the surface of your blood cells. The different versions or alleles for the blood type protein are called A, B, and O. The other gene is for another protein on your blood cells called the Rh factor. The alleles are called plus (+) and minus (-). The two genes for blood type are inherited separately.

Although not definitive or exhaustive of the analysis, under the foregoing description of blood typing, it would appear that the ABO system would arguably constitute a non-excepted genetic test under GINA since it’s an “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes”. In other words, it seems to go beyond a “routine blood test” of checking one’s cholesterol level, which the EEOC proposes to be excluded from GINA coverage. 

Bottom Line

Since the EEOC’s implementing regulations are still in the rule proposal stage, GINA issues like this one will likely present many gray areas requiring thoughtful analysis among legal counsel and possibly medical professionals. With respect to blood typing, however, until further guidance is issued by the EEOC, it would likely be in an employer’s best interest, first, to avoid eliciting or using the blood type information of applicants and employees and, second, to err on the side of including such information as potentially covered by GINA.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Faragher/Ellerth affirmative defense is familiar to most employment law practitioners. This defense, available to employers defending harassment/hostile work environment cases where no tangible employment action was taken against the plaintiff, comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Generally, employers have had success invoking Faragher/Ellerth and dismissing cases simply by showing that it had an adequate anti-harassment policy with procedures and mechanisms for resolving harassment complaints of which the plaintiff was aware and, notwithstanding, the plaintiff failed to fully utilize those avenues for relief set forth in the policy.

Recently, the Second Circuit in Gorzynski v. Jetblue Airways Corp., 596 F.3d 93 (2d Cir. 2010) addressed application of the Faragher/Ellerth defense where the supervisor/alleged harasser was the only person to whom the allegedly harassed employee complained. Jetblue argued that it was entitled to summary judgment under Faragher/Ellerth because its policies contained alternative avenues through which plaintiff could have effectively remedied the alleged harassment, namely, by complaining to Jetblue’s human resources or to other members of management other than her supervisor/ alleged harasser. Thus, Jetblue argued, Plaintiff’s election to complain only to her immediate supervisor, the very person who was allegedly harassing her, was an unreasonable failure to fully avail herself of the company’s anti-harassment policies. 

Under the facts of Gorzynski, the Second Circuit found that issues of fact existed as to whether the alternative channels were “ineffective or even threatening”, and thus declined to rule as a matter of law that it was unreasonable for the plaintiff to complain only to the alleged harasser. Specifically, the Court found issues of fact as to whether another manager was receptive to receiving harassment complaints from employees, based on evidence that the manager previously admonished or intimidated employees who complained. Similarly, the Court found issues of fact as to whether Jetblue’s human resources department was a viable channel when there was evidence that one of plaintiff’s co-workers was suspended within days of making a complaint about the same alleged harasser. Under these unique facts, the Court determined that “several of the listed channels appeared to be ineffective or even threatening,” and thus held that “a fact question exists as to whether it was reasonable for Gorzynski to believe that any other avenues would be similarly futile.”

Under the Second Circuit’s analysis, whether a plaintiff’s election to not pursue other avenues provided in the employer’s sexual harassment policy is “unreasonable a matter of law” will likely depend on an examination of the facts and circumstances of each case. For example, eschewing alternate avenues and complaining only to the harasser may be unreasonable where the facts demonstrate “as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open” to plaintiff, and such avenues could have been effective at remedying the harassment. In this framework, however, an employer will still prevail on its Faragher/Ellerth defense as a matter of law where the plaintiff has failed to adequately set forth reasons why it was reasonable to refrain from complaining to those other than the harasser, who were listed as available as receiving complaints.  

Bottom Line

Faragher/Ellerth remains a crucial litigation defense for employers. However, Gorzynski demonstrates the limits of that defense when the plaintiff is able to show that the company’s policies afforded her with complaint outlets that were ineffective or futile. While the holding in Gorzynski turned on specific facts in that case, the case presents a stark reminder that anti-harassment policies should ensure multiple, practical, and viable complaint channels and outlets of which employees may avail themselves without fear of intimidation or retaliation. In addition, managers occupying those important positions designated to receive and resolve such complaints should be trained on the company’s anti-harassment and equal opportunity standards, and the importance of being receptive and non-retaliatory.

**Note** The New York Court of Appeals, New York's highest state court, held on May 6, 2010 specifically that the Faragher/Ellerth defense is not available to defeat harassment claims under the New York City Human Rights Law. Instead, Faragher/Ellerth evidence is relevant to mitigation of civil penalties and punitive damages under that statute. See Zakrzewska v. The New School, 2010 NY Slip Op 03796 (May 6, 2010).

• Email This
• Print
• Comments
• Trackbacks
• Share Link

By Brian Molinari and Doug Weiner

The Department of Labor’s Semiannual Regulatory Agenda (pdf) reported in the Federal Register on April 26, 2010 contains several agenda items under the Fair Labor Standards Act (FLSA) that employers should note.  Highlighted below are some key ones. (Note: this posting is not intended as a comprehensive summary the DOL's Agenda, which spans 49 pages and lists all regulations that are expected to be under review or development between April 2010 and April 2011.

Record-Keeping

Section 11 of the FLSA requires employers to keep specified records of the hours employees work, and the wages they are paid.  We previously reported on DOL's stated intention to update the FLSA’s record-keeping regulations, which specify the scope and manner of records covered employers must keep that demonstrate compliance with minimum wage, overtime, and child labor requirements under the FLSA, and the records to be kept that would confirm applicability of particular exemptions.  A Notice of Proposed Rulemaking (NPRM) is scheduled to be released in August 2010. 

According to DOL, this rule proposal will:

• update the recordkeeping requirements to foster more openness and transparency in demonstrating employers’ compliance with applicable requirements to their workers, to better ensure compliance by regulated entities, and to assist in enforcement.
• update the recordkeeping requirements applicable to certain domestic employees and to modernize the requirements, consistent with the increasing emphasis on  "flexiplace" and telecommuting, to allow for automated or electronic recordkeeping systems instead of the mandatory manual preparation of “homeworker” handbooks currently required for all work that an employee may perform in the home.

We will, of course, track whether and to what extent the record-keeping regulations are updated.  However, irrespective of regulatory requirements, it's almost always in an employer's best interest to have an accurate and effective record-keeping policy and practice in place not just confirming hours worked and wages paid, but also descriptions of employees' job duties confirming applicability of any exemptions.  The public will be invited to provide comments on the proposed revisions and possible alternatives.

Domestic Service Workers

We previously reported on the apparent plausibility of DOL revisiting and repealing the domestic service exemption. With respect to the current exemptions for domestic employees engaged in providing companionship services (29 U.S.C. 213(a)(15)) and for live-in domestic employees (29 U.S.C. 213(b)(21)), the DOL 's Agenda identifies a "long-term action" of updating the regulations at 29 CFR part 552 in light of significant changes in the home care industry.  A Notice of Proposed Rulemaking is scheduled to be released in October 2011.

Specifically, DOL states that there is a need to examine: (i) the definition of companionship services; (ii)  the criteria used to assess whether employees qualify as "trained personnel" (companionship services are currently defined to not include services performed by trained personnel such as registered or practical nurses); and (iii) the applicability of the exemption to third party employers.  You may recall that the Supreme Court in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) held that DOL was within its authority to promulgate regulations that include employees who provide "companionship services" as falling within the terms of the statutory exemption irrespective of whether the employee is paid directly by a household or a third-party employer.  Given the stated intentions of DOL, and the FLSA's historic tendency to classify less skilled/trained/educated workers as non-exempt, it is likely that DOL will exercise its rulemaking authority to significantly reduce the scope of the domestic service exemption.

Child Labor Health and Safety

We previously reported on increased child labor penalties and DOL's special focus on child labor safety.  The DOL is now at the " final rule " stage of continuing to review regulations to ensure that job opportunities for working youth are healthy, safe, and not detrimental to their education, as required by 29 U.S.C. sections 203(l), 212(c), 213(c), and 216(e)). This final rule will update the regulations to reflect statutory amendments enacted in 2004, and will propose, among other updates, revisions to address several recommendations of NIOSH in its 2002 report to the DOL on the child labor Hazardous Occupations Orders. The DOL has assessed that updating child labor regulations issued under the FLSA will help meet the challenge of ensuring good jobs that are safe, healthy, and fair for the Nation’s working youth, while balancing their educational needs with job-related experiences that are safe. Final action is expected by the end of this month.

In the coming months, we will continue to review DOL's rulemaking progress, and update our readers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last month, I reported on OSHA focusing on green jobs even though, technically, there is not yet a universally accepted definition for identifying and measuring "green jobs" according to the Bureau of Labor Statistics.

Further demonstrating the energized greening of the Department of Labor, it celebrated Earth Day by launching its "Turning Green Jobs to Gold, Safely" campaign. The green2gold campaign's mission is to collect examples over the next year of actions that organizations, businesses and government entities have taken to create green jobs.  On Earth Day 2011, the DOL will then release a sampling of "best practices" presumably based, in part, on the data that it receives.

If your company wishes to be considered as a featured best practice, you should e-mail greengoldsafe@dol.gov and describe in 150 words or less how your company has changed or adopted a plan to create green jobs within your company and helped spur economic growth. The DOL will evaluate your submission based on the following criteria:

• How your company's/organization's actions were climate friendly;
• How your company's/organization's actions contributed to the economy, including the creation of new & safe green jobs; and
• Motivations for the decision to make climate-friendly changes that support green job growth and how the changes were accomplished. 

With a recent survey indicating that 53 percent of employers have green programs in place (up from 43 percent during the previous year) this may be an excellent opportunity to highlight your company's eco-friendly culture with national exposure.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Passage of any major landmark legislation divided on stark partisan lines, such as the Patient Protection and Affordable Care Act (PPACA) (Public Law 111-148), is bound to incite passion across the political spectrum.  In addition to traditional Democrat and Republican ideology, we now have “tea party” and “coffee party” movements. There is thus no question that many people, including your employees, are probably going to be “talking politics”. 

However, some have opined that current political discourse has devolved to overt expressions or undertones of racism, sexism, and/or xenophobia. See Frank Rich, The Rage Is Not About Health Care (New York Times, March 27, 2010) (“The real source of the over-the-top rage of 2010 is the same kind of national existential reordering that roiled America in 1964. . . . If Obama’s first legislative priority had been immigration or financial reform or climate change, we would have seen the same trajectory. The conjunction of a black president and a female speaker of the House — topped off by a wise Latina on the Supreme Court and a powerful gay Congressional committee chairman — would sow fears of disenfranchisement among a dwindling and threatened minority in the country no matter what policies were in play. . . .When you hear demonstrators chant the slogan ‘Take our country back!’ these are the people they want to take the country back from”).

America’s most-watched cable news personality also detects a climate of hatred, although his talking points say it is occurring equally on the left and the right: “There is far too much hatred in America. That’s obvious. It comes from both sides. . . . The point is that the situation in America is reaching critical mass. There is far too much hatred in the air. The press is obviously pumping up inappropriate things that happen on the right and pretty much ignoring hateful things on the left. . . . But every member of the media should condemn all hate speech and violent activity. It is simply un-American.” 

Some Hidden Dangers of Tea & Coffee Talk

While contentious issues like healthcare expansion, immigration reform and amnesty, abortion, gay marriage, religious observances, and foreign policy are capable of objective debate, it is clear that we're in a political climate in which conversation can easily become tainted with perceptions of racial, sexist, religious, or national origin prejudice. As an employer, you should of course be aware that federal, state, and local nondiscrimination laws require work environments to be free of “hostility” based on protected classifications such as race, national origin, religion, gender, age, and disability. (Some states and municipalities also include sexual orientation as a protected category).  Workplace conversation can violate Title VII of the Civil Rights Act of 1964 when it permeates the workplace with discriminatory intimidation, ridicule, and insult  that is sufficiently severe or pervasive to alter the conditions of an individual’s employment and create an abusive or hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Merely expressing one’s point of view on these hot-button subjects could include comments that are misconstrued as discriminatory or elicit further conversation that may devolve into discussions or commentary not appropriate for the workplace. Thus, while a supervisor’s general discussion of her opposition to healthcare reform may be benign, it may be imprudent if she included commentary about protected classes or characteristics. For example, a conversation centered on the large numbers of uninsured individuals is innocent enough, but moving the general conversation to a specific group or individual may be troublesome. Thus a supervisor commenting that statistically, Hispanics have the highest uninsured rate of any racial or ethnic group within the United States, or that a woman's right to choose with respect to pregnancy should be (or should not be) part of a healthcare package of an employer may be perceived as “crossing the line” from general banter or comment to harassment. The better practice is to simply avoid any potential for misunderstanding and refrain from engaging in political discussion based on protected classes or characteristics.

In addition, a more complex issue arises when such political banter among employees implicates rights under section 7 of the National Labor Relations Act that may be applicable to the extent it is deemed protected concerted activity.  The NLRB General Counsel's July 22, 2008 Memorandum provides some guidance on helping to determine when concerted activity is considered to be for purposes of collective bargaining or other "mutual aid or protection" under section 7 of the NLRA.  It is important to note that such issues need to be taken into consideration even in workplaces that are non-unionized. 

Best Practices

Accordingly, private employers should be extra-cognizant of, and appropriately investigate, any bona fide complaint of workplace political banter that explicitly or implicitly invokes protected characteristics.  This does not mean that companies should be hyper-managing general civility, for employers must be able to trust that their employees are exercising good judgment, discretion and respecting a diverse workplace.  Indeed, regardless of whether political discourse rises to the level of creating a hostile work environment, employers are entitled to expect good judgment and discretion to foster teamwork, positive morale, and productivity.  

To this end, while there is no “one size fits all” strategy, your company should consider adopting a clear, user-friendly policy on political expression which includes channels for complaints, investigation, and disciplinary action. NB: A private employer is not bound by the First Amendment and is generally free to restrict speech at its discretion. However, because of the myriad laws varying by jurisdiction (such as state laws protecting certain political speech or activity, lawful off duty conduct laws such as New York Labor Law 201-d, as well as federal laws concerning union activity and/or otherwise protected concerted activity) legal counsel should be consulted before implementing a policy concerning political expression by employees. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Social media sites such as Facebook and Twitter have become fertile grounds, unfortunately, for expressions of hatred and intentions to commit acts of severe violence. Indeed, just one day after passage of healthcare legislation, a news headline read: “Angry Over Health Reform Vote, Conservative Blogger Posts Twitter Call for Obama Assassination”. As workplace violence has become all too frequent with horrific news reports such as the alleged University of Alabama professor shooting and killing several coworkers, methods of advance detection and prevention are of vital importance. Indeed, as there are some reports that workplace violence is on the rise since the onset of the recession, it could be a potentially life-saving red flag to know when one of your co-workers begins "twittering" about his or her violent intentions.

Traditionally, employers have had to rely on old-fashioned means of detecting violent propensities of their employees, by observing changes of behavior including: displays of anger, aggression, anti-social actions or threats, despondency, foul language, disorganization, loss of interest, and/or complaints or word of mouth reports from co-workers. Electronically, employers with email monitoring policies and practices could also be in a position to detect anyharassment or violent intentions expressed via email or instant messaging.

In this regard, two New Jersey cases illustrate that a duty may arise to prevent co-worker harassment or injury to another when the employer knows or has reason to know that such harassment or threats are taking place via the company's internet. See e.g., Blakey v. Continental Airlines, 164 N.J. 38 (2000) (involving a pilot's claims for sexual harassment and defamation stemming, in part, from a co- worker's postings on an electronic bulletin board on company's internet). Similarly, in Doe v. XYC Corp., 382 N.J.Super. 122 (App. Div. 2005), the court held that an employer with notice of an employee viewing child pornography on the internet has a duty to investigate and act to avoid third-party injury. Thus, Doe suggests an additional step for employers to not only investigate reports of internet misconduct, but to discipline employees and report the dangerous internet activity to law enforcement authorities.

With the explosion of social media sites, it is also possible for any person with internet access to visit these sites and view public postings or conduct search queries for keywords, people, places, topics, etc. Indeed, the Wall Street Journal recently reported on some companies regularly searching social media sites during recruiting, and ensuring confidentiality of business deals, trade secret protection, employee attendance, and loyalty. Similarly, I previously blogged here about social media in the context of sexual harassment and hostile work environment.

To get a flavor of some of the discourse occurring, I ran simple keyword searches relating to "co-workers" on the publicly available pages of these sites. The search results were voluminous and ranged from benign banter to disturbingly unequivocal expressions of intent to severely harm another person. Below are some publicly viewable examples of real tweets and status updates from March 23, 2010 (the persons' usernames have been deleted):

Publicly Viewable on Twitter

xxxx: So one of my co-workers is about __ close to getting smacked in the mouth #imjustsayin

xxxx: Saw the supervisor come so I moved my chair back..chair hit him in the stomach..#thuglife

xxxx: I want to shoot my coworker iin his foot

xxxx: If i had a gun i would shoot my professer

xxxx: Im bout to shoot this ____ up…

xxxx: i jus wanna stab somebody

xxxx: I wish I could just stab anyone that annoyed me in the face.

xxxx: i wanna stab this professor!!!!

xxxx: Throwing things at the head of another co-worker can have repercussions . . .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In my recent post about green workplaces, I tangentially noted the focus on “green jobs” by the National Institute for Occupational Safety & Health (NIOSH) and the Occupational Safety & Health Administration (OSHA). Indeed, under the American Recovery and Reinvestment Act of 2009 (ARRA), over 100 billion federal dollars are allocated across the country for various green infrastructure and energy projects, development of green technologies, and green job training.

What is a Green Job?

NIOSH notes there is no "official definition" for green jobs, but defines them broadly as jobs and practices that help improve the environment which could include (a) new types of jobs related to green technologies, processes, outcomes and products; (b) existing jobs where green practices and technologies are being introduced; and (c) existing jobs that create products viewed as important to the green economy.

Because of the lack of universal definition, on March 16, 2010 the Bureau of Labor Statistics (BLS) announced that it is soliciting comments for defining green jobs to begin compiling relevant job data. BLS notes that, broadly defined, "green jobs" are involved in economic activities that help protect or restore the environment or conserve natural resources. Such economic activities generally fall into the following categories: renewable energy; energy efficiency; greenhouse gas reduction; pollution reduction and cleanup; recycling and waste reduction; agricultural and natural resources conservation; and education, compliance, public awareness, and training on environmental issues.

What is OSHA Doing?

Employers should be aware that OSHA has stated its commitment to a “multi-tiered enforcement program” to assure worker protection on ARRA-related projects (particularly construction, infrastructure, and green energy projects, as well as to industries in manufacturing that support those projects). Assistant Secretary of Labor David Michaels, in his recent speech, stated:

OSHA will also be looking carefully at worker safety and health issues related to green jobs. Green jobs promise to be kinder to our environment and transform our economy, but they're not necessarily safer for American workers. Many of these new jobs pose old occupational hazards. . . So, from the bottom up, we must integrate worker safety and health into green manufacturing, green construction and green energy. Employers who rush into the green economy without paying attention to worker safety and health will blunder into many preventable injuries and deaths. I'm making it my mission and OSHA's mission to ensure this doesn't happen. Green jobs will not be good jobs unless they are safe jobs.

As some of you have asked for more information on green jobs, you may be interested in attending OSHA’s forum on April 1, 2010: “Green Jobs: Safety & Health Outlook for Workers and Small Employers” focusing on hazards posed by green jobs in construction, energy, and waste management and recycling industries. Panelists will also discuss best practices and strategies for small businesses in reducing safety and health hazards associated with green jobs.

In addition, NIOSH recently listed six ideas for integrating occupational safety and health with energy conservation and environmental sustainability to ensure safe and healthy green jobs:

1. Define, categorize, and track green jobs

2. Evaluate all green jobs, practices, processes, and products for hazards to worker safety and health

3. Integrate worker safety and health, energy conservation and environmental protection efforts

4. Plan early for prevention

5. Make safety and health part of green jobs training

6. Add safety and health to green benchmarks

Best Practices

It is clear that various regulatory agencies are continuing to adapt to a greener economy.  Employers should, of course, ensure that all applicable OSHA standards (e.g., Part 1910 and Part 1926) are complied with regardless of whether the work performed is "green".  This means, at a minimum, determining the extent to which old hazards will be manifested in a green job, and determining how to adapt old guidance to new jobs while being cognizant of any new hazards. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link