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Discarded blacklist

President Obama and his EO’s

Remember the Blacklisting Order that required federal contractors to provide a rap sheet with a proposal? No? Well, President Obama issued 275 Executive Orders during his two terms on various subject matters, some of which were fairly controversial, the Blacklisting Order included. Back in 2014, he issued several high-profile executive orders focused on employment issues in particular. For example, executive orders were issued for federal contractors regarding minimum wage, affirmative action, disclosure of compensation information, and similar issues. So what happens to those EOs now? Although we can’t predict the future, we can tell you that the Blacklisting Order is gone for now.

Some Background: Fair Pay and Safe Workplaces Executive Order 13673

Executive Order 13673 (issued on July 31, 2014) was called the “Fair Pay and Safe Workplaces” order, and it required federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years that related to potential violations under the FLSA, NLRA, OSHA, FMLA, and other anti-discrimination laws. It was known as the “blacklisting” order because it required the federal contracting officer to consider such violations when awarding or extending government contracts. The order also barred contractors from imposing predispute arbitration agreements on their employees.

Successful Challenge to the Order: The FAR Rule and the Injunction

On August 24, 2016, the Federal Acquisition Regulatory Council and the Department of Labor published a final rule implementing the Fair Pay and Safe Workplaces Executive Order. The final rule required federal prime contractors and subcontractors, including federal construction contractors with contracts over $500,000, to disclose to the government labor violations occurring within an expanding lookback period. Among the labor laws listed were the Davis-Bacon Act, the Service Contract Act, the FLSA, OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the NLRA.  The final rule, which was more than 500 pages, contained an effective date of October 25, 2016.

On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the Eastern District of Texas to have the order and final rule declared unlawful and set aside. The ABC complaint stated that “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” ABC further sought to have the regulation immediately enjoined. On October 24, 2016, the Texas federal judge granted ABC’s motion for a preliminary injunction against the reporting obligations in the new rule. The court also enjoined the restriction on arbitration agreements.

Enter the CRA and President Trump

Using a law passed in 1996 called the Congressional Review Act (CRA), in 2017 Congress immediately began reviewing regulations issued in the final months of the Obama administration. The CRA gives Congress an expedited process to revoke administrative regulations issued by the executive branch which it believes infringed when believed the regulations infringed upon the role of Congress. Although used only a few times since its passage, Congress has already invoked the CRA seven times this year. All of these actions have been signed into law by President Trump.

This week, on March 27, President Trump signed CRA legislation to repeal the Fair Play and Safe Workplaces regulations issued last August. Under the CRA, the House passed a resolution on February 2 to revoke the rule, and the Senate followed suit on March 6. With President Trump’s signature this week, the blacklisting rule finally and officially is blacklisted. In signing the CRA bill, the Trump administration commented that the blacklisting rule had been seen as one of the most significant threats to growing American businesses and hiring more American workers. We suspect that there will be more blacklisting of President Obama-era regulations in the days to come.

100 Percent Tie Off: New OSHA Fall Protection Standard for General Industry EmployersFor our general industry employers, you have new fall protection standards. As the Occupational Safety and Health Administration uses the term, “general industry” means all employers not in construction, agriculture, or maritime industries.

The new rule goes into effect soon – on January 17, 2017 – and employers were given only 60 days of notice to come into compliance. Since the new rule is over 500 pages long, you might want to start reading it now. The full text of the new rule can be found on the Federal Register website.

The new rule has been in the making for a long time. The proposed rule goes back to 2010. The intent of the new rule is to update and modernize fall protection and working surfaces standards for general industry employers and to provide options that are more in line with standards in the construction industry.

So what does the new rule require? Here are some of the highlights:

  1. Employers are allowed to select the fall protection system that works for them (beyond the traditional railing systems). This will allow general industry employers to consider systems similar to those used in the construction industry.
  2. The options for fall protection include traditional guardrail systems, safety nets, ladder safety systems, positioning systems, travel restraint systems, and personal fall arrest systems.
  3. New ladder safety requirements also are included. Many of these involve load requirements and inspection requirements.
  4. Requirements for actual safety harnesses to be worn by employees are included. So-called “body belts” are not allowed.
  5. Walking-working surfaces must be regularly inspected.
  6. Training in fall protection must be provided, especially to employees in high hazard situations.
  7. Certain historical exceptions for employees in “climbing” occupations have been replaced with ladder requirements.
  8. And, if you have high-altitude window washers, those employees must use descent systems limited to 300 feet.

Again, most of these requirements come into effect on January 17, 2017 (absent some immediate action by our newly elected government leaders). Some of the training deadlines have been delayed until May 17, 2017, and some of the ladder, fall protection system, and tie-off anchorage requirements do not come into effect until 2018. Bottom line though, for non-construction employers, the new rule should be considered now, and plans for compliance should begin right away.

Taking a Bite Out of Crime…and Maybe the Employer? OSHA Fines Company Following Criminal Assault on EmployeeThe Occupational Safety and Health Administration (OSHA) recently reminded us that every employer needs a violence in the workplace policy or risk citation for third party criminal actions. The OSH Act’s general duty clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. OSHA clearly believes that third party criminal activity can be a recognized hazard and employers have an obligation to address it. It has gone so far as to issue Guidance for Preventing Workplace Violence for Healthcare and Social Services Workers to provide guidance to the healthcare industry on how to handle potentially dangerous patients or environments.

The Facts

Epic Health Services’ employees go into patient homes to provide home health services. According to OSHA, a number of Epic employees reported problems ranging from verbal assaults to domestic violence in the home to being physically groped. One nurse said the father in a home in which she provided services to a child attempted (sometimes successfully) to grope her and commented about her body and later physically assaulted her. (He was later charged with rape and sexual assault.) OSHA found that other employees had told Epic about the father’s prior assaults and the nurse said Epic did not warn her of the danger.

The Citation

OSHA cited Epic for exposing “employees to the risks of physical assaults as they provided nursing care services to both clients and family members and had no system for reporting threats or incidents of violence.” Additionally, OSHA cited Epic for “failing to report all instances of workplace violence, regardless of the severity.” OSHA characterized this as a willful violation– the employer “either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.” The fine is $98,000, which is, of course, not the end of the story–the nurse is suing the company for negligence.

Policy Options

What can employers do to both protect their employees and prevent such citations? OSHA suggests the following:

  • A written violence workplace prevention program
  • A hazard assessment and security procedures for each patient/client
  • Procedures to reduce the risk, including an option for employees to refuse to provide services in a hazardous situation (with no fear of retaliation)
  • Training
  • Procedures for when a violent incident occurs, including incident reports and investigation
  • A system for employees to report all workplace violence, regardless of severity

While some of these recommendations are unique to the healthcare industry, most are not. This applies to any employer whose employees interact with the public, are sent to other sites to perform work, or work with other people (who are not always stable).

Oh, and don’t forget that the cost of OSHA citations just increased significantly. The best practice is to let your employees know that you care about their safety, that they can report concerns and that you take them seriously, even if the threat involves a customer or patient. Not surprisingly, the best way to prove that you care is to have a written policy and enforce it.