Background About Ergonomics

An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD).  MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc.  Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning.  The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel Syndrome, Tendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).

MSDs are the single most common type of work related injury.  According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs.  OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).

Federal OSHA’s Ergonomics Enforcement Policy

Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy.  In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace.  Days later, utilizing the Congressional Review Act (CRA), the Republican Congress voted to overturn the ergonomics regulation and newly elected President George W. Bush signed the resolution of disapproval, repealing the ergonomics standard. Because the CRA prevents the agency from promulgating a substantially similar regulation, ergonomic injuries have since gone unregulated, other than sparing use of the general duty clause.

Although employers in states subject to federal OSHA jurisdiction have thus been able to adopt a wait-and-see approach with respect to ergonomics enforcement generally, and specifically how the Trump Administration will roll-out its overall deregulation agenda to workplace safety matters, some states with their own OSH Programs are stepping in to fill the void.

Cal/OSHA on Ergonomics

To no one’s surprise, California is one state pushing progressive new worker safety regulatory requirements, even as federal OSHA retreats in that area.  One significant new move by Cal-OSHA is the recently finalized safety standard on Hotel Housekeeping Musculoskeletal Injury Prevention.  The new standard, which will be enforced by Cal/OSHA, was approved on March 9th by the Office of Administrative Law, and will become effective July 1, 2018.

This standard, which focuses on ergonomic hazards associated with housekeeping positions, follows closely on the heels of a series of “panic button” ordinances enacted by several large cities across the country to protect housekeepers from sexual assault by hotel guests and/or visitors.

California adopted the new workplace safety and health regulation to prevent and reduce work-related injuries to housekeepers in the hotel and hospitality industry. This is the first ergonomic standard in the nation written specifically to protect hotel housekeepers.  In a press release announcing the final standard, Cal/OSHA’s Chief Juliann Sum explained:

“Hotel housekeepers have higher rates of acute and cumulative injuries compared to workers in other industries, and data shows those injuries have steadily increased . . . This regulation requires employers to identify, evaluate and correct housekeeping-related hazards with the involvement of housekeepers and their union representative.”

The standard, applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, from high-end hotels and resorts, to motels, inns and bed & breakfasts. The standard specifically excludes from this definition hospitals, nursing homes, residential communities, prisons, shelters, boarding schools and worker housing.

Covered establishments will be required, under the new standard, to develop, implement and maintain a written Musculoskeletal Injury Prevention Program (“MIPP”) that is tailored to hazards associated with housekeeping.  Employers have the option of including the MIPP with their preexisting Injury & Illness Prevention Program (“IIPP”) or to create a standalone program specifically for housekeeping MSD risks.

Regardless of its form, the MIPP must be available to covered employees on any shift.  Notably, employees must also be able to access the MIPP electronically — a requirement that may pose a challenge to smaller establishments.

The required elements of a housekeeping MIPP will be familiar to any employer that has developed an IIPP, which should already include:

• worksite hazard evaluations;
• injury investigations;
• hazard abatement efforts;
• employee training; and
• recordkeeping.

Notably, covered employers must also complete an initial worksite assessment within three months of the effective date of the standard, which assessment is intended to identify and address a variety of potential ergonomic risk factors, ranging from unpredictable trauma occurrences such as slips, trips and falls, to more traditional repetitive stress MSD concerns such as regular and frequent reaching above shoulder height, lifting, bending, kneeling, squatting, pulling and/or pushing.

Perhaps most controversial about Cal/OSHA’s new Hotel Housekeeping Ergo rule, though, is the agency’s effort to wade into operational concerns by requiring employers to assess “excessive work rates” as well as “inadequate recovery time” between tasks.

Covered employers should act promptly so they are prepared once the standard goes into effect in July of this year.  Lodging establishments that wait until the last minute will be feeling the heat as they attempt to develop the required program and conduct the initial worksite assessment within three months of the standard’s effective date.

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For more information about Cal/OSHA’s new Hotel Housekeeping Ergonomics Rule and other Cal/OSHA developments, join Conn Maciel Carey attorneys for a complimentary webinar on July 10, 2018 – “New Cal/OSHA Issues California Employers Must Track.”

Authors

Andrew Sommer – Partner, Conn Maciel Carey

Andrew J. Sommer is a partner in the Labor • Employment Group and OSHA • Workplace Safety Group. He counsels clients on a broad spectrum of employment-related matters as well as matters involving OSHA and Cal/OSHA.

Aaron Gelb – Partner, Conn Maciel Carey

Aaron R. Gelb is a partner in Conn Maciel Carey’s Chicago office. He specializes in labor and employment, and OSHA litigation.

In a speech given to the Heritage Foundation in October 2017, the Acting Director of ICE, Thomas Homan, indicated that he expects the number of worksite investigations to increase “four to five times” in the coming years. According to Homan, “we’re taking worksite enforcement very hard this year. We’ve already increased the number of inspections and worksite operations, you’re going to see that significantly increase this next fiscal year.”

The communicated immigration priorities of the current administration present a justifiable concern for the hospitality and retail industries and pose real operational, financial, and legal dilemmas for entities in both industries — which tend to employ a large number of immigrant workers. Recent actions by ICE support these concerns and should provide a cautionary tale to both industries.

In January 2018, ICE agents raided dozens of 7-Eleven stores in search of undocumented workers. This raid targeted 98 stores — from Los Angeles to New York — and resulted in 21 arrests. The targets of these raids, however, were not simply the workers. The managers who willingly employ undocumented workers were also a prime target of ICE.

Acting Director Homan described the raids as a warning to other companies that may employ unauthorized employees. According to Homan, “[t]oday’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce. ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.” Derek N. Brenner, acting head of ICE’s Homeland Security Investigations, ominously stated that the 7-Eleven raid was “a harbinger of what’s to come.”

In order to safeguard themselves, businesses in these targeted industries must familiarize themselves with ICE’s worksite enforcement strategy. ICE utilizes a three-prong approach to conduct worksite enforcement:

1. I-9 inspections, civil fines, and referrals for debarment.
2. Enforcement through the arrest of employers who knowingly hire undocumented workers along with those undocumented workers.
3. Outreach programs to instill a culture of compliance and accountability.

A notice of inspection from ICE simply notifies business owners that ICE intends to audit hiring records to determine whether the businesses are in compliance with the law. Employers are required to produce their company’s I-9’s within three business days. Should ICE determine that employers are not in compliance with the law, the businesses will likely incur civil fines and possible criminal prosecution should it be determined that they are knowingly violating the law. Civil Penalties can range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end of the spectrum.

In light of the increased focus on workplace enforcement by ICE, how can employers in the hospitality and retail industries ensure that they do not become the next 7-Eleven? In order to be adequately protected and prepared it is recommended that employers conduct internal audits of their Form I-9’s and any related compliance processes and procedures. It is also suggested that any employees who are responsible for maintaining the Form I-9’s be given annual training to ensure that they are kept abreast of any updates in the law. As Benjamin Franklin famously said, “an ounce of prevention is worth a pound of cure” and taking these steps will help employers be prepared when the inevitable ICE storm arrives.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

GDPR compliance does not rest just with IT – it is everyone’s responsibility. Organizations can help their employees comply with the new regulation and protect against breaches by developing a comprehensive communication and training strategy. In fact, the GDPR requires that companies train their workforces on how to handle personal data under the new law. For training to be effective, it should not be limited to an annual off-the-shelf online course. Instead, training should begin at the top of each organization with a demonstrated commitment to creating awareness and a compliant culture, whether through townhalls or other company-wide communications. Supplement online training with in-person role-based training tailored to meet each functional area’s unique requirements.

Training, however, is not enough. With Privacy by Design now mandated by the GDPR, messages about information protection must be integrated throughout the business. This begins with emphasizing the value of information protection in the Code of Conduct and Ethics. Put this language into practice by embedding privacy and security in operational procedures, aligning it to business goals, and measuring it regularly. Encourage employees to champion information protection by inviting them to the conversation.

With May 25th just around the corner and 59% of U.S. employees reporting they know little to nothing about GDPR, there is still much more work to be done in creating employee awareness. And with fines of up to 4% of annual global revenues or €20 Million (whichever is greater) for non-compliance, lack of awareness could prove to be costly. Organizations with any questions about the applicability of the GDPR to their activities or how to prepare should contact their regular Fisher Phillips attorney or any of the attorneys in our Data Security and Workplace Privacy Group.

Use of the E-Verify system is currently voluntary for employers unless mandated under state or local law, or if you are obligated as a federal contractor under an existing federal contract. However, Congress is considering legislation to mandate E-Verify for all employers, require a status check of all current employees not electronically verified within the three preceding years, and require termination of all employees determined unauthorized to work. Expect to see a healthy discussion on this topic in the months to come, and don’t be surprised if you are required to use E-Verify before you know it.

Before this much-anticipated debate kicks into high gear, employers should know that balancing the use of E-Verify while avoiding the implications of employment discrimination can prove to be as simple as walking a tightrope. But fear not! Here is a crash course on what you need to know about E-Verify.

The Basics: Mount The Line

The federal government’s web-based system known as E-Verify compares information from an individual’s Form I-9 against data in the U.S. Department of Homeland Security (DHS), Social Security Administration (SSA), and Department of State (DOS) records to confirm employment eligibility. An employer uses the information from the I-9 to create a case in the E-Verify system, to commence no later than three business days after the start of employment. After the case is created, the system provides a case verification number, and employers must either record that number on the I-9 or attach the case detail page to the document itself.

After inputting the information, E-Verify immediately responds with an initial case result of either “Employment Authorized” or “Tentative Nonconfirmation” (TNC), indicating whether the information on the I-9 matches the available records. Current statistics show that 97 percent of individuals who are checked through E-Verify are Employment Authorized, meaning the information entered into the system matches the information in the federal agency databases. The individual is thus considered authorized to work and the employer closes the E-Verify case.

However, when the information provided by the employee and inputted into the system does not match with DHS, SSA, or DOS databases, employers will receive a TNC notification. The employer must promptly inform the employee in private, and provide a “Further Action Notice” document for the employee to sign explaining the reason for the TNC.

The employee may choose to contest the results, in which case the employer must issue a Referral Date Confirmation from E-Verify providing contact information and instructions for the employee to contact the DHS or SSA. The employee then has eight federal government work days after initiating the referral to contact the appropriate federal agency to resolve the matter. If the matter is resolved, and the SSA or DHS update their records to reflect a match and an Employment Authorized result, the employer may close the case. However, if the individual refuses to contest the TNC or if a Final Nonconfirmation (FNC) result is issued, the employer may terminate employment.

Lucky 13: Walking The Tightrope With A Safety Net

Misuse of the E-Verify system by an employer could lead to a charge of discrimination based on citizenship, immigration, or national origin. But if you use the system properly, you will receive the benefit of a safe harbor. To avoid any implication of E-Verify-related employment discrimination, you should consider the following 13 steps:

1. Conspicuously post the “Notice of E-Verify Participation” and “Right to Work” posters in both English and Spanish.
2. Do not use E-Verify before an individual has accepted a job offer and completed a Form I-9.
3. Do not use E-Verify to verify any employee hired before November 6, 1986.
4. Do not use E-Verify to re-verify an individual for continuing employment after their employment authorization has expired. Instead, instruct the employee to either complete Section 3 of their I-9 or fill out a new I-9. Remember to use E-Verify only for new hires or rehired employees.
5. Keep copies of the following I-9 List A documents: Permanent Resident (PR) card, passport, passport card, and Employment Authorization Document (EAD).
6. Do not use E-Verify as a tool to prescreen or discriminate against individuals based on their national origin, citizenship, or immigration status.
7. Do not ask employees who receive a TNC to provide additional work authorization documentation.
8. Remember to provide a Further Action Notice explaining the reason for the TNC result.
9. Do not influence an employee’s decision whether to contest a TNC result.
10. Do not take any adverse action against an employee based on their choice to leave an E-Verify TNC uncontested. You are prohibited from taking any adverse action (including firing, suspending, withholding pay or training, or simply infringing upon the individual’s employment) against an employee unless and until the employee receives an FNC or a “DHS No Show”.
11. Do not ask employees to provide specific types of documents during the employment eligibility process.
12. Remember that simple typos can cause a TNC result, so don’t jump to conclusions during the process.
13. Finally, understand that use of the E-Verify system does not relieve you of your I-9 obligations.

Careful, Don’t Slip!

While maintaining your balance, one misstep can result in a fall. In the event you slip up, the Immigrant and Employee Rights Section (IER) of the Department of Justice Civil Rights Division reviews charges of discrimination and investigates all alleged discriminatory conduct pursuant to the Immigration and Nationality Act (INA).

If an employee suspects their employer is discriminating based on citizenship, immigration status, national origin, or other discriminatory misuse of the E-Verify system, the employee can notify IER. The agency will either contact the employer to resolve the issue or, when necessary, issue charge forms to victims of discrimination. Upon receipt of a charge of discrimination, IER takes approximately seven months to complete an investigation. Violators are subject to civil penalties, back pay awards, hiring orders, the imposition of injunctive relief to end discriminatory practices, and attorneys’ fee awards.

Dismount!

To maintain balance and avoid a tumble, you should adopt a written immigration compliance policy, train all staff on how to enforce it, and employ ongoing education of the E-Verify system. You should also consider taking advantage of the IER outreach and education programs to gain a firm understanding of the antidiscrimination provisions of the INA.

If the IER comes knocking, don’t panic. Instead, cooperate with the investigation, make the necessary adjustments, and know that you can always contact your local Fisher Phillips attorney for assistance. But you don’t need to wait until the government is on your doorstep to call upon our firm; we can assist you from your first step on the tightrope until you land safely on the other side.

For more information, contact the author at NBanks@fisherphillips.com or 404.240.5853.

As demand for air travel and accommodation increases and market conditions continue to change, traveler compliance will become even more important for corporates keen to maintain control of their travel spend. Compliance however, has a broader focus than just being about whether or not your employees are following policy guidelines. Compliance also relates to metric and culture, both of which can help to generate travel cost savings in different ways. If you can’t measure how compliant your travelers are, or you’re unsure how to enhance your corporate culture, improving your company’s overall travel performance and ultimately your bottom line could be a challenge.

What’s the value of compliance?

FCm research shows that by optimizing your travel policy design and improving traveler compliance via a travel management company (TMC) provided online booking tool, corporates can save more than 30 percent on their travel spend. A lack of compliance among your traveling employees can result in significant ‘missed savings’ through unauthorized and/or non-compliant bookings for air, hotel and ground travel, which over the course of a year, or even a few months, can significantly erode potential savings.

Assessing compliance

When it comes to improving traveler compliance corporates need to know what areas of their travel policy are capable of delivering maximum return for best practice traveler behavior. While the drivers will be different for every company, there are a few common policy items that can be used to measure how compliance impacts travel spend including: advance bookings. An FCm study showed that companies could save on average up to 72 percent on the cost of their tickets by booking 21 days or more in advance of their departure date. Although these savings are dependent on the time of travel and which airline you fly with, significant savings can be made by encouraging your travelers to book as far in advance as their business travel allows.Restricted airfaresMake sure your policy has clear recommendations or a mandate around restricted airfares. If your travelers know their plans aren’t going to change, encourage the use of restricted airfares for both the inbound and outbound flights or if they have to make flight changes in the afternoon, they should be booking a restricted fare for the outbound leg and flexible ticket for the inbound leg. High levels of compliance and understanding of this policy item can save companies around 10 percent of their air spend.Preferred suppliersProperly educate your travelers on what is expected of them when it comes to booking through preferred suppliers and your business will have a greater chance of converting negotiated discounts and preferred supplier pricing into actual savings. Your supplier preferences need to be clearly articulated and reiterated on a regular basis to your employees.Travel class/categoryHow well do your employees follow your policies for class of air travel for domestic, short-haul and long-haul travel? And what does your policy recommend if your preferred hotel or room category is unavailable? Corporates need to have clear policies for travel class, category and preferred suppliers in the event that preferences are unavailable or there are issues with delayed approval processes.Booking channelsMandate that all of your bookings go through the one TMC and you can actively improve compliance by increasing the monitoring, tracking, visibility and accountability that comes from the expertise of having one travel manager to oversee your activity.

Improving compliance

There is a range of strategies that corporates can use to boost company-wide compliance. These range from policy consulting, traveler training and education, incentive based rewards for compliant behavior, TMC provided online booking tools and data analysis designed to identify opportunities for missed savings (e.g. exception reporting).FCm’s online booking tool has a robust best fare of day capability, which captures missed savings and traveler details when non-compliant fares are booked. Best practice booking behavior and travel times can also deliver savings.

Addressing non-compliance

If non-compliance is an ongoing issue, corporates can adopt any number of strategies from up-front traveler education, information sessions or for repeat offenders written warnings, the circulation of repeat offender lists and or individual accountability for repeated policy offenses. If there is no redress for out-of-policy bookings, your policy has no impact and no authority. FCm can help you establish a strategy for policy enforcement that is tailored to suit your corporate culture.

The balancing act

To generate additional savings through improved levels of compliance, corporates should try to achieve a good balance between enforcement and traveler needs.If there is an area where you are having serious compliance issues it may be due to more emotive circumstances e.g. one of your preferred hotels may not be conveniently located or does not meet traveler standards for safety, cleanliness and amenities. While aggressive compliance enforcement may help to achieve your financial objectives, it may limit your company’s ability to attract and retain top performers that are used to a more flexible approach to travel policies. FCm suggests working with your travel manager to determine how policy enforcement is best approached for your organization.

Compliance checklist

• Define your travel policy.
• Make your policy manageable and measurable.
• Communicate and educate.
• Promote compliance through booking processes.
• Leverage TMC intelligence.

Originally published on Tuesday February 17, 2015
1543 views at time of republishing