Author: WorkCompAcademy

While cranes play a vital role in the transportation, construction and agriculture industries, among others, operating this type of equipment can be especially dangerous if proper protocol is not followed. In fact, the Census of Fatal Occupational Injuries, or CFOI, reported a staggering 297 crane-related deaths between 2011 and 2017. As part of a collaboration with the NCCCO Foundation, and continuing its mission to advance safety in the workplace, the National Safety Council released a new report through its Work to Zero initiative, Understanding the Current State of Safety Hazards in the Crane Industry, highlighting lift-specific risks and best practices employers can adopt to keep workers safe.

Research from the CFOI also shows more than half of workplace deaths that occur in the crane industry involve workers being struck by objects or equipment, and an additional 27% of fatalities occur as a result of falls and transportation incidents.

For the report, the National Safety Council partnered with the NCCCO Foundation to survey certified crane operators and inspectors to identify the most common hazards in the industry, top risk factors and learn about technology solutions to eliminate or minimize injuries. Nearly 2,200 voluntary and anonymous responses from the NCCCO Foundation between July and August 2023 were used to develop this report. Notable findings include:

– – Top hazardous situations: Working at height, vehicle-pedestrian interactions, and loading and unloading materials are the top hazardous situations on the job. Between 55% and 89% of participants said they were likely or very likely to be exposed to these circumstances. In 2020, NSC found these three hazardous situations resulted in 30% of non-roadway occupational fatalities.
– – Most common risks: The two most common systemic risks contributing to workplace injuries in the crane industry are heat stress and fatigue. The report also found that survey participants reported heat and stress were some of the most likely exposures on the job.
– – Most common causes of injuries: Situational risks remain prevalent in the crane industry, with falls from height and being struck by a falling object being the two most common causes of injuries.
– – Safety training and compliance: Eight out of 10 survey respondents believe they have access to appropriate safety training before starting a task, but lack of proper training still accounted for 7% of personal injuries and 8% of on-site injuries.
– – Technology implementation: The use of safety technology – including drones, proximity sensors and vital sign wearables – is fairly low. Depending on the specific type, only one to 13% of participants reported using technology at job sites. However, many of those surveyed indicated a willingness to try new safety technology solutions, while the primary barrier to adoption was concern over data privacy.

The report also notes some recommended actions and potential technology solutions that employers can implement to help reduce the top safety risks in the crane industry, including:

– – Heat stress: Working in high-heat environments can lead to both serious injuries and illnesses, including heat stroke, slips, trips, falls and dropping objects. It’s important employers develop heat stress prevention programs that include safety training on how to recognize the signs and symptoms. Potential technology solutions that may help mitigate these risks include wearables that monitor people’s vital signs.
– – Fatigue: Fatigue can cause workers to have trouble focusing and remembering, which can lead to distractions and less muscle coordination, ultimately resulting in more injuries. Similar to heat stress, safety training should focus on how to recognize the signs and symptoms, and wearable technology can play an important role in monitoring this issue.
– – Struck by falling objects and falls from height: Working at height risks, like being struck by an object or falling, can be reduced with fall protection training and instruction on how to properly use personal fall arrest systems. Potential technology solutions include utilizing drones for inspection and visualization purposes, which eliminate the need for a worker to be off the ground.

This report builds on the Work to Zero Safety Innovation Journey to help organizations assess risks, identify technology solutions and ready workplaces for implementation. As the crane industry continues to navigate major safety challenges, NSC and the NCCCO Foundation plan to continue this work and provide additional resources to educate crane operators, inspectors and employers about potential workplace hazards and technology solutions that can help minimize risks.

On Oct. 26, the National Labor Relations Board (NLRB) issued its much-anticipated final rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA). The 229-page rule not only restores the deeply flawed standard first announced during the Obama administration in its 2015 Browning-Ferris decision, but also expands potential liability for employers.

During the Trump administration, the NLRB reversed the Browning-Ferris standard via a final rule, and it required a putative joint employer to “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment to determine that status. The new October 26, 2023 rule rescinds the Trump-era board’s standard and “makes extreme and troubling changes to Board law,” as Member Marvin Kaplan states in his dissent to the new rule.

Joint employment is where two or more employers control the essential terms and conditions of employment for the same employees. The rule makes it easier for the NLRB to declare joint employment status exists in business relationships where it traditionally doesn’t, like franchising, contracting, and supply chains.

The U.S. Chamber of Commerce and a coalition of business groups filed a lawsuit against the National Labor Relations Board (NLRB) in the U.S. District Court for the Eastern District of Texas over its new joint employer rule.

The rule makes it easier for the agency to declare joint employment status exists in business relationships where it traditionally doesn’t, like franchising, contracting, and supply chains. It upends a longstanding precedent by broadening liability for employers and enabling unions to organize across companies rather than store by store. Many companies could find themselves facing liability for workers they don’t employ and workplaces they don’t actually control.

The Chamber is joined by co-plaintiffs: the American Hotel and Lodging Association, Associated Builders and Contractors, Associated General Contractors of America, Coalition for a Democratic Workplace, International Franchise Association, Longview Chamber of Commerce, National Retail Federation, National Association of Convenience Stores, Restaurant Law Center, Texas Association of Business, and Texas Restaurant Association.

According to the Chamber of Commerce “If the rule is allowed to go into effect, it will have far-reaching consequences for businesses of all sizes. A previously expanded joint employer rule was in place from 2015 to 2017 and cost franchise businesses, a majority of which are small businesses, $33 billion per year. That resulted in 376,000 lost job opportunities and led to 93% more lawsuits.”

The new rule was set to take effect March 11, 2024 after two delays. Prior to the effective date, the Chamber of Commerce had a major victory as the court granted their motion for summary judgment in the case, finding that the Board’s reach “exceeds the bounds of the common law and is thus contrary to law.” The judge also held the Board’s rescission of the 2020 rule arbitrary and capricious and reinstated the 2020 rule that requires “direct and immediate control” over the essential terms and conditions of employment of another entity to establish joint-employer status.

The final Judgment of the Court in U.S. Chamber of Commerce et al. v. NLRB et al., No. 6:23-cv-0055 was entered on March 8, 2024. “It is declared that enforcement against plaintiffs or their members of the rule issued by the National Labor Relations Board on October 27, 2023, entitled Standard for Determining Joint Employer Status, 88 Fed. Reg. 73,946, would be contrary to law as to the rule’s addition of a new 29 C.F.R. § 103.40 and arbitrary and capricious as to its removal of the existing 29 C.F.R. § 103.40 (2020). In both respects, the rule is hereby vacated.”

The decision in the lawsuit filed by the Chamber of Commerce sets the stage for an appeal to the US Court of Appeals for the Fifth Circuit, which is known for politically conservative rulings.

In another pending case on this new rule, the Service Employees International Union filed a petition for review of the new rule in the D.C. Circuit, Case No. 23-1309 last November. SEIU is asserting that the new rule on the ground that the Rule was not broad enough..

The U.S. Chamber of Commerce and a number of other employer groups have filed documents as intervenor in the SEIU action. it has asked “the Court to hold these proceedings in abeyance pending the resolution of any appeal of the final judgment entered in Chamber of Commerce of the United States of America v. NLRB,” which vacated the rule challenged in the SEUI petition. The D.C. Circuit has not ruled on this motion, and briefing of the issue remains in progress by the parties.

In addition to these two pending cases, Congress is advancing a Congressional Review Act resolution to block the rule, even though the lawmakers’ effort faces a veto by President Joe Biden. Last January, the House the House passed H.J. Res. 98, a Congressional Review Act resolution by a bipartisan vote of 206 to 177,that will nullify the National Labor Relation Board’s (NLRB) joint employer rule,

The legislative process has now moved to the US Senate where a vote is expected later this year.

The U.S. Department of Labor announced a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration compliance officer during an inspection of their workplace will be published in the Federal Register on April 1. The rule is effective on May 31, 2024.

The Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee.

For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

Consistent with OSHA’s historic practice, the rule clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection. These revisions better align OSHA’s regulation with the OSH Act and enable the agency to conduct more effective inspections. OSHA regulations require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule is in part a response to a 2017 court decision ruling the agency’s existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives. However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA’s historic practice was a “persuasive and valid construction” of the OSH Act. The final rule is the culmination of notice and comment rulemaking that clarifies OSHA’s inspection regulation and aligns with OSHA’s longstanding construction of the act.

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

The Workforce Committee Chairwoman Virginia Foxx (R-NC) issued a statement on the Department of Labor’s (DOL) final Walkaround Rule. “This rule has absolutely nothing to do with keeping workers safe. Rather it weaponizes OSHA inspections – harming workers’ safety while also increasing employers’ costs. This isn’t surprising given this administration’s zeal for regulatory overreach.

“What’s worse, under this rule unionizing efforts and other activist campaigns are put ahead of safety efforts. So much for OSHA’s vital mission of protecting the health and safety of the nation’s workers. It appears the Biden administration’s only concern is propping up Big Labor’s agenda. Mr. President, workers and job creators hear your message loud and clear.”

Senate Committee on Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-Louisiana) stated: “OSHA inspections are crucial to protect workers’ safety and should never be co-opted to promote a political agenda,” said Dr. Cassidy. “The union has a vested interest in harassing a non-union employer. Giving them the power to influence an inspection is a potential weapon against a workplace that has chosen to be non-union. This is wrong.”

Greg Sizemore, Associated Builders and Contractors vice president of health, safety, environment and workforce development said: “There simply is no business case for this final rule and no benefit during a compliance inspection.”

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite.”

The Equal Employment Opportunity Commission filed a lawsuit in September 2023 in the United States District Court for the Northern District of California against Tesla, Inc.under Title VII of the Civil Rights Act of 1964 for claims arising from Tesla’s race-based employment practices.

The Commission alleges Tesla has subjected Black employees at its Fremont, California manufacturing facilities to severe or pervasive racial harassment and has created and maintained a hostile, race-based work environment there since May 2015. The N-word and other racial slurs, epithets, and stereotyping “permeated Tesla’s Fremont Factory.” Non-Black managers, non-managerial employees, and temporary workers directly addressed Black employees individually and collectively using the N-word.Other race-based slurs and insults were frequently used as well.

At work, Black employees allegedly encountered racist graffiti-including swastikas, death threats, and nooses on bathroom walls, desks, elevators, and equipment. Black employees describe the use of slurs and racist imagery as “casual and normal,” “frequent,” “constant,” “a regular thing,” and occurring “too many times to count.”

Non-Black employees allegedly used slurs and epithets openly in high-traffic work areas and hubs. Supervisors and managers witnessed racially offensive conduct but failed or refused to intercede. Black employees reported the slurs, insults, graffiti, and misconduct to Tesla’s human resources, employee relations, and managerial personnel. Tesla failed to investigate complaints of racial misconduct, adopt policies or practices to ensure its temporary workforce did not perpetuate racial harassment at the Fremont Factory, or otherwise take remedial action to end the ongoing racial harassment.

Tesla’s supervisors and human resources officials allegedly retaliated against Black employees by changing their schedules, assigning them less desirable duties, writing them up without justification, and firing them within weeks of reporting the ongoing racial harassment and discrimination.

Tesla filed a motion to stay the proceedings under the Colorado River doctrine and on the grounds the Commission failed to engage in pre-suit conciliation, and also a motion to dismiss based on the Commission’s failure to identify any member of the alleged group of victims. And also because the EEOC did not allege all three elements of a prima facie retaliation claim. On March 29, 2024 the court denied all three motions.

In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, the U.S.Supreme Court recognized “in exceptional circumstances, considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation can support a stay of federal litigation in favor of parallel state proceedings.

Tesla insists this action is substantially similar to two state court actions now before Alameda County Superior Court Judge Grillo: Department of Fair Employment and Housing v. Tesla, Inc., Alameda County Superior Court No. 22CV006830, and Vaughn, et al. v. Tesla, Inc., et al., Alameda County Superior Court No. RG 17882082.

In the Vaughn Case, filed July 2021, the plaintiffs sue Tesla for race-based harassment and discrimination and failure to prevent race-based harassment and discrimination in violation of California’s Fair Employment and Housing Act. In the Civil Rights Department Case, filed in March 2022, California’s Department of Fair Employment and Housing initiated an enforcement action for group relief against Tesla on behalf of California and aggrieved Black Fremont Factory workers, alleging racial harassment, employment discrimination based on race, retaliation, failure to prevent racial harassment and discrimination, and recordkeeping violations.

Tesla asserts the state court actions are substantially similar to this action because 1) “the putative class in the Vaughn Case and the alleged aggrieved group in the [Civil Rights Department] Case include all African American workers at the Factory within the statutory periods,” and 2) the Commission’s complaint is based on the same factual allegations and seeks to vindicate the same legal rights as some claims in the state court actions.

However the court noted that “a Colorado River stay is inappropriate when the state court proceedings will not resolve the entire case before the federal court. If there is any substantial doubt as to whether the state court actions will completely and promptly resolve the issues between the parties, it would be a serious abuse of discretion to grant the stay or dismissal at all.”

Between July 2022 and June 2023, the Commission engaged in conciliation efforts with Tesla, including a seven-hour, in-person conciliation session on June 13, 2023. So, the Commission tried to engage Tesla in discussions to provide Tesla the opportunity to remedy the allegedly discriminatory practice. A court looks only to whether the EEOC attempted to confer about a charge, and not to what happened.

Tesla’s argument for dismissal based on the Commission’s failure to identify any member of the alleged group of victims failed because the Commission brings this enforcement action in its own name, so the Commission is not required to identify an aggrieved individual to survive Tesla’s motion to dismiss.

The complaint is not required to plead a prima facie case of retaliation as long as it contains “a short and plain statement of the claim showing that the pleader is entitled to relief,” Swierkiewicz v. Sorema N. A., 534 U.S. 506. at 508 (quoting Federal Rule of Civil Procedure 8(a)(2)).

On March 27, 2024, the Appeals Board issued its opinion in Sandra Ja’Chim Scheuing v Lawrence Livermore National Library -ADJ8655364; -ADJ14830172, and designated it as a significant panel decision.

Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant.

In Ja’Chim Scheuing, the Appeals Board discussed its approach to cases where a petition for reconsideration is timely filed, but the case is not timely received by the Appeals Board, and clarified that the Appeals Board will continue to follow the long-time precedent in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].

Sandra Ja’Chim Scheuing requested reconsideration of the Findings & Award issued by a WCJ who found her injury caused permanent disability of 28%. Applicant contends on reconsideration that she is 100% permanently and totally disabled, and that the WCJ failed to fully consider all of the medical and vocational evidence in making his determination. In this case, the WCJ issued the Findings & Award on December 1, 2023, and applicant filed a timely Petition for Reconsideration on December 18, 2023 at the Oakland district office. As required by Rule 10205.4 (Cal. Code Regs., tit. 8, § 10205.4).

Her paper Petition was scanned into the Electronic Adjudication Management System (EAMS). (See Cal. Code Regs., tit. 8, §10206 [electronic document filing rules], § 10205.11 [manner of filing of documents].)  When a petition is filed, a task is sent to the WCJ through EAMS so that the WCJ receives notice that a Report is required. (See Cal. Code Regs., tit. 8, §10206; 10962.) No such notice is provided to the Appeals Board. Thereafter, the district office electronically transmits the case to the Appeals Board through EAMS and notifies the Appeals Board that it has been transmitted.

There are 25 days allowed within which to file a petition for reconsideration from a “final” decision that has been served by mail upon an address in California. (Lab. Code, §§ 5900(a), 5903; Cal. Code Regs., tit. 8, § 10507(a)(1).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, § 10508.) To be timely, however, a petition for reconsideration must be filed (i.e., received) within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, §§ 10845(a), 10392(a).)

Here, according to Events in EAMS, which functions as the “docket,” although the Petition for Reconsideration was timely filed on December 18, 2023 at the Oakland district office, the district office transmitted the case to the Appeals Board on February 21, 2024. Thus, the first notice to the Appeals Board of the Petition was on February 21, 2024. Thereafter, the WCJ issued the Report on February 27, 2024. Due to this lack of notice by the district office, the Appeals Board failed to act on the Petition within 60 days, through no fault of the parties.

Therefore, considering that applicant filed a timely Petition for Reconsideration and that the Appeals Board’s failure to act on that Petition was a result of administrative error, “we conclude that our time to act on applicant’s Petition was tolled until 60 days after February 21, 2024.”

Once a case is pending at the Appeals Board, parties may not submit new evidence or raise new issues, unless the Appeals Board specifically provides notice and orders further proceedings to consider further evidence and/or issues. (See Lab. Code, §§ 5906, 5907, 5908(a).)

Here, applicant did not seek permission to file supplemental pleadings as required by WCAB Rule 10964. While WCAB Rule 10964 does not require the Appeals Board to accept supplemental pleadings, the Appeals Board may exercise its discretion to accept a supplemental pleading and consider it. Here the WCAB accepted applicant’s letters of February 22, 2024 and March 1, 2024 for filing as supplemental pleadings and considered them.

“We believe that as a matter of due process, once a party has confirmed timely filing of a petition under WCAB Rule 10615 (Cal. Code Regs., tit. 8, § 10615), they should be able to reasonably expect that the petition will be considered by the Appeals Board. As explained above, until it is transmitted to the Appeals Board, the case remains at the district office level, and all status inquiries should be directed to the district office. When the 60- day period in section 5905 has expired and there has been no response by the Appeals Board, we recommend that the parties contact the district office to confirm that the case has been transmitted to the Appeals Board and that notice was provided to the Appeals Board. Once they have received this confirmation from the district office, they may follow up by email with the Appeals Board’s Control Unit at ControlUnit@dir.ca.gov.”

This time limit is jurisdictional and therefore, the Appeals Board has no authority to act upon or consider an untimely petition for reconsideration. (Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1076 [65 Cal.Comp.Cases 650, 656];  Rymer v. Hagler(1989) 211 Cal.App.3d 1171, 1182; Scott v Workers’ Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 984 [46 Cal.Comp.Cases 1008, 1011]; U.S. Pipe & Foundry Co. v. Industrial Acc. Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549 [27 Cal.Comp.Cases 73, 75-76].)

In contrast, here, applicant’s Petition for Reconsideration was timely filed on December 18, 2023, seventeen days after the WCJ’s decision of December 1, 2023. Thus, as explained above, the Appeals Board has the authority to act upon the Petition and to consider it.