Eleventh Circuit Upholds Verdict in “Take-Home” Asbestos Case
Posted on May 3, 2017
Last week, the Eleventh Circuit considered a “take-home” asbestos case. Following a worker’s death from asbestos-induced lung cancer, the worker’s spouse was diagnosed with malignant pleural mesothelioma. Prior to her death, she filed suit against her husband’s employer alleging that washing her husband’s clothes for 20-plus years had exposed her to asbestos. Following a three-day bench trial, the district court entered judgment against her husband’s employer for more than $3 million. As Chief Judge Ed Carnes framed the issue in the Eleventh...
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OSHA Changes Course on Union’s Ability To Participate in Inspections of Non-Union Workplaces
Posted on May 1, 2017
On April 25, 2017, the Occupational Safety and Health Administration (“OSHA”) officially repealed the “Fairfax Memorandum,” a February 21, 2013 directive (an archived copy of the memo can be found here). The Fairfax Memorandum explained that workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union or community organization to act on their behalf in a walk-around OSHA inspection. The OSHA “repeal” states that the February 21, 2013 guidance letter was unnecessary given the “express guidance” in the statute: “Section 8(e) of the...
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Worker’s Sprained Ankle Leads to $250,000 Punitive Damage Award for Retaliation
Posted on Apr 27, 2017
A railroad challenged a worker after the worker filed an OSHA complaint on grounds that he lied in that complaint about precisely how his on-the-job accident occurred (based on a discrepancy between the complaint and his prior version of the events). An ALJ concluded that those charges of dishonesty amounted to unlawful retaliation against the employee for filing the OSHA complaint and awarded $250,000 in punitive damages (the statutory maximum). The DOL Administrative Review Board found that substantial evidence supported the ALJ’s decision, and last week, the First Circuit agreed....
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Court Allows Case Challenging OSHA’s Interpretation of Non-Employee “Walk Around” Rights To Continue
Posted on Feb 12, 2017
In response to the challenge by the National Federation of Independent Business (“NFIB”) of OSHA’s guidance for the right of non-employee third parties to participate in OSHA workplace safety investigations at non-union workplaces, the U.S. District Court for the Northern District of Texas concluded that the NFIB has standing to bring its claims and that the NFIB’s primary claims could go forward. OSHA argued that the court lacks subject-matter jurisdiction because standing was lacking and the lawsuit was not ripe for judicial review. Employee representatives have the right to...
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OSHA Issues Directive for Inspections of Facilities Subject to PSM
Posted on Jan 19, 2017
OSHA has issued a directive for a National Emphasis Program (NEP) for inspecting facilities with highly hazardous chemicals that are subject to OSHA’s Process Safety Management (PSM). This instruction describes an updated initiative by OSHA. As the NEP explains, “Under the previous related instructions, OSHA conducted inspections of facilities covered by OSHA’s PSM standard either through an instruction specific to petroleum refineries or an instruction related to all other PSM-covered chemical facilities excluding petroleum refineries. This instruction is applicable to all...
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Root Cause Analysis Must Be Produced Where Not Substantively Different from Analyses Prepared in Ordinary Course of Business
Posted on Dec 8, 2016
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
Posted on Dec 7, 2016
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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