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Case Over Non-Employee “Walk Around” Rights During OSHA Inspections Heats Up

The National Federation of Independent Business (“NFIB”) is challenging OSHA’s guidance for the right of non-employee third parties to participate in OSHA workplace safety investigations.  Employee representatives have the right to participate in OSHA workplace safety investigations and even though these representatives typically also have to be employees, OSHA has made reasonable allowance for third-party specialists such as industrial hygienists or safety engineers to accompany the compliance officer when “reasonably necessary.”  In 2013, however, Deputy-Assistant Labor Secretary Richard...
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Root Cause Analysis Must Be Produced Where Not Substantively Different from Analyses Prepared in Ordinary Course of Business

An Arizona federal court granted a motion to compel production of a Root Cause Analysis Report (“Report”) prepared by a third party at the request of the owner of an electric power station generator that failed.  Following the generator’s failure, the owner’s general counsel emailed two senior managers in the company instructing them to retain a third-party investigator to conduct a root cause analysis of the failure “in anticipation of litigation.”  When the owner hired the third-party investigator, it informed the third-party investigator that the root-cause analysis was for purposes of...
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Federal Court Denies Attempt To Enjoin New OSHA Reporting Rule

OSHA’s new rule on electronic reporting requirements (the “Rule”) takes effect on January 1, 2017 (for a summary of the Rule, check out our previous post).  In addition to imposing requirements for electronic submission of certain injury and illness reports, the Rule includes three anti-retaliation measures.  A group of trade associations, workers compensation providers, and other employers (collectively “Employer Group”) filed suit in the U.S. District Court for the Northern District of Texas earlier this year seeking to enjoin the Rule’s anti-retaliation measures.  That court, however,...
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New OSHA Reporting Rule Takes Effect January 1, 2017

Earlier this year, OSHA issued its final rule requiring some employers to electronically submit workplace safety information.  Some of this information will subsequently be made public, meaning that employers and the public will have access to employer-specific data to compare safety performance.  In addition, the final rule expressly contains anti-retaliation measures for workers who report injuries and illnesses.  With 2016 coming to a close, the final rule’s provisions will soon become effective and employers should be aware of the rule’s implications. The final rule does not alter...
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Nuisance and Negligence Claims Against Michigan Oil Refinery Are Time-Barred

The U.S. District Court for the Eastern District of Michigan dismissed a putative class action claiming harm from emissions of oil refinery contaminants.  The Plaintiffs claimed the Detroit refinery was liable under private nuisance, negligence, and strict liability theories.  Plaintiffs, who lived near the refinery, alleged that the refinery released dangerous toxins into their residential area. The court granted the refinery’s motion to dismiss, stating that the Plaintiffs’ nuisance and negligence claims were “time-barred” and that Michigan did not expressly recognize a stand-alone strict...
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Whistleblower’s Claim of Termination for Reporting Deficient Preventative Maintenance Dismissed

In a per curiam decision, a New Jersey appeals court affirmed a decision dismissing a worker’s whistleblower claim against his former employer, a trucking company.  The worker alleged that he was wrongfully terminated from his job as a mechanic after reporting violations of the company’s preventative maintenance program.  The appellate court’s decision turned on whether the worker “objectively, reasonably believed [the Company’s] conduct threatened public safety.” At the trial court level, the plaintiff’s coworker testified that he and the plaintiff first notified the...
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Third Circuit Reverses Summary Judgment in Asbestos Exposure Case

The Third Circuit partially reversed a grant of summary judgment in favor of a manufacturing company in an asbestos exposure case after finding that a reasonable jury could find the manufacturer may have exposed the worker to asbestos.  The Plaintiff (the estate of a deceased pipefitter) alleged that the pipefitter’s terminal lung cancer was caused to forty-five years of asbestos-exposure in three facilities owned by the manufacturer and that the exposure occurred from 1) asbestos-containing turbines and 2) asbestos-containing switchgears. Before reaching its ultimate decision, the...
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