US DOT Announces Final Rule Banning Texting While Driving by Commercial Motor Vehicle Operators: OSHA Joins In to Battle "Distracted Driving"

Posted on September 23, 2010 by Mike Underwood

On September 21, 2010, the Federal Motor Carrier Safety Administration ("FMCSA"), an agency of the U.S. Department of Transportation, announced a final rule banning commercial vehicle operators from texting messages while driving. An earlier post on this site described the notice of rulemaking. At the September 21st "National Distracted Driving Summit," FMCSA announced that the final rule will be published "soon" and will take effect 30 days after publication.

It is anticipated the final rule will track closely with the rule as originally proposed and will ban "texting," defined broadly to include generating and reading any sort of text message from an electronic device. The ban will not include using a cell phone, including to read, select, or enter a telephone number. The ban will apply anytime the driver is operating a commercial motor vehicle, including while the vehicle is temporarily stopped because of traffic, traffic lights, or for other momentary delays. The ban will not apply when the driver has moved the vehicle to the side of the road or parked safely. Drivers may be fined up to $2,750 and their employers up to $11,000 for violations. Drivers guilty of multiple violations will have their commercial licenses suspended.

In the same summit meeting, Secretary of Labor Hilda Solis announced that OSHA will join DOT in a concerted effort to address distracted driving in the workplace. Secretary Solis announced a "multi-pronged initiative" for OSHA that includes an education campaign for employers, an open letter to employers on OSHA's web site during "Drive Safely Workweek," model employer policies, and the issuance of citations and penalties if an employer requires texting while driving.

OSHA's enforcement authority reaches all private sector employers, not just commercial vehicle operators. OSHA has not developed a specific OSHA standard regarding texting while driving. But, the Secretary's remarks make clear that OSHA will consider issuing citations, at least where employers are actively encouraging or requiring texting while driving, under its "general duty clause." OSHA issues general duty clause citations where OSHA feels there is a hazard well recognized in an industry and the employer fails to address the hazard. 
Tags: , , , ,

Stepped-Up OSHA Enforcement: Severe Violator Enforcement Program (SVEP)

Posted on June 3, 2010 by Mike Underwood

The Obama Administration has advanced various initiatives to strengthen OSHA enforcement efforts. The Severe Violator Enforcement Program (“SVEP”) is a draft OSHA directive expected to take effect in June, 2010. SVEP will replace OSHA’s current Enhanced Enforcement Program. SVEP will direct OSHA enforcement officials to take especially aggressive enforcement steps in four specific circumstances:

The four circumstances that will trigger SVEP enforcement are:

  1. Fatality/Catastrophe

Circumstances involving a fatality or where three or more employees are hospitalized, and where one or more willful, repeat, or failure to abate citations are issued.

  1. High-Emphasis Hazards

Circumstances involving one or more specified high-emphasis hazards where two or more willful, repeat violations or failure to abate citations are issued. Examples of high-emphasis hazards include: certain fall hazards, certain amputation hazards, combustible dust hazards, and certain airborne contaminant hazards.

 

  1. Potential Release of a Highly-Hazardous Chemical (Process Safety Management)

Circumstances involving where three or more willful potential release of highly-hazardous chemicals, repeat, or failure to abate citations are issued.

 

  1. Egregious Cases

All cases where OSHA issues citations under its “Egregious Case” policy, which applies to especially serious safety hazards for which OSHA opts to cite employers separately for every employee exposed.

 

The unfortunate employer subject to SVEP enforcement will face enhanced and more aggressive follow-up inspections by OSHA, possible nationwide inspections of other facilities that may have similar hazards, notice of citations to national headquarters, employee representatives and unions, issuance of regional and/or nationwide news releases, and more aggressive settlement terms in OSHA settlement agreements.

 

Worker safety should always be a primary concern, for many obvious reasons. But, initiatives like SVEP and the current efforts in Congress to increase OSHA financial penalties significantly are additional good reasons for all employers to be especially vigilant on matters of workplace safety compliance.

Tags: , ,

OSHA Sends Strong Message Under SOX

Posted on March 26, 2010 by Kevin Griffith

Publicly traded companies need to remain vigilant to avoid employment-related retaliation against employees who may complain about company violations of accounting controls and possible violations of SEC related rules or regulations. In a whistleblower case under SOX, OSHA recently ordered Tennessee Commerce Bank to reinstate its former chief financial officer and pay him more than $1 million in back wages, interest, attorneys fees and compensatory damages.

Apparently fostering the Obama administration’s push for stricter enforcement of Department of Labor and financial industry regulations, an Assistant Secretary of Labor for OSHA issued this statement about OSHA’s order: “This case clearly shows the Department’s commitment to ensuring individuals are provided the protections and relief forwarded by the laws and sends a strong message that retaliatory actions will not be tolerated.”

In the case, the former CFO alleges he raised concerns to the Bank’s audit committee and later to the Federal Deposit Insurance Corporation about internal controls, certain employee accounts and possible insider trading. For reasons not yet publicized, apparently the CFO was placed on administrative leave in March 2008, filed a whistleblower complaint with OSHA in April 2008, and he was terminated from employment in May 2008. In its defense, Tennessee Commerce claims that it terminated the CFO “for cause” and that any alleged whistleblowing occurred only after his termination. Tennessee Commerce is appealing OSHA’s determination.

Meanwhile, Tennessee Commerce has a very challenging situation. Under the whistleblower provisions of SOX, Tennessee Commerce has to reinstate the CFO to a position that will make him “whole” in terms of pay, benefits and seniority status. That puts Tennessee Commerce in a very awkward situation since the former CFO has not worked for the Bank since March 2008. Worse yet, under the SOX rules, Tennessee Commerce legally cannot obtain a stay of the reinstatement order while it appeals OSHA’s decision.

Obviously, OSHA’s order gives the former CFO tremendous settlement leverage if Tennessee Commerce wants to avoid the awkwardness and employee relations impact of re-employing its former CFO. If the parties do not settle the case and continue with the formal legal proceedings, we will keep you apprised. The Tennessee Commerce case certainly is a clear and loud reminder to all publicly traded companies to respond carefully to any SOX-related whistleblower allegations in an appropriate manner.
Tags: , , ,

New Consumer Product Safety Whistleblower Law Enacted

Posted on September 26, 2008 by Brian Hall

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (CPSIA), which includes, among many extensive changes to consumer safety laws, a whistle-blower provision.

This provision applies to all manufacturers, distributors, retailers and private labelers of children's toys, children’s products and child care articles, regardless of the number of employees. Under the Act, children's toys and children's products are generally defined as being "designed or intended primarily for children 12 years of age or younger."  "Child care articles" are defined as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething."

The Act, which became effective immediately upon President Bush's signature, protects covered employees from retaliation resulting from:

 

(a) providing or "being about to" provide to the employer, the federal government or state attorney general information relating to any act or omission that the employee reasonably believes to be a violation of the law.

(b) testifying or "being about to" testify in a proceeding concerning such a violation;

(c) assisting or participating in, or "being about to" assist or participate in, such a proceeding; or

(d) objecting to, or refusing to participate in, any activity, policy, practice or assigned task that they (or other such persons) reasonably believed to be a violation of any provision of the Act or any other law enforced by the Consumer Product Safety Commission, or any order, rule, regulation, standard, or ban under such laws.

 

Consistent with a variety of other federal whistleblower statutes, OSHA is responsible for accepting complaints, conducting investigations and hearings and otherwise enforcing the CPSIA whistleblower provision.

The CPSIA, which was enacted in response to last year's overwhelming number of recalls of children's products and toys, contains numerous revisions to the consumer safety laws relating to all aspects of the manufacture and sale of children's toys, children's products and child care articles. All affected employers should re-evaluate their policies and procedures not only to ensure compliance with these amendments, but also to ensure that appropriate procedures are in place to address employee concerns about covered product safety and to ensure legitimate non-retaliatory bases for any discipline imposed on any covered employee.
Tags: , , ,