OSHA News
A Relationship between California OSHA and Wells Fargo
Pomona, CA: As occupational health and safety regulations continue to be strengthened, California OSHA complaints have evolved from the sensational debacle surrounding allegations that banking giant Wells Fargo established accounts in the names of various Wells Fargo clients allegedly without their permission, in a bid to increase fees. Various fines have been levied against the bank, investigations have been launched and thousands of Wells Fargo employees have lost their jobs in the wake of the alleged wrongdoing.
One of those former employees is Claudia Ponce de Leon. Years before the current troubles surrounding Wells Fargo became public, the California-based former employee filed a California OSHA complaint against the bank in December, 2011. In her complaint, Ponce de Leon noted that she had been promoted to a general manager at her branch in Pomona the preceding June, only to discover that employees were engaged in “excessive gaming.” The assumption, is that this reference to gaming had little to do with the playing of video games on company time, but instead involved behavior that reflected questionable practices in an attempt to meet overly-ambitious quotas issued by the bank.
Ponce de Leon, who was terminated from her job soon after raising concerns about the practice, alleged in her California OSHA complaint that it was “virtually impossible” for employees to meet such aggressive quotas without cheating, and that her attempt at reporting what she had found to her superiors resulted in a termination “without cause.”
She reported to Reuters (09/19/16) that only recently has she heard from California OSHA with regard to her firing partly, it is assumed, due to the recent escalation of the Wells Fargo debacle in the media.
However, the increased interest in her case five years out is also presumed to be, in part, due to an overhaul in enforcement guidelines by the Occupational Safety and Health Administration. The federal agency – which also has jurisdiction at the state level in concert with state governance – is sharpening its teeth in an effort to become more effective and relevant at both the federal and state level, including California.
In related news, the recent strengthening of equal pay laws in the state of California – in an effort to make it more difficult to discriminate against workers based on gender – will soon be augmented by a pending change to the salary threshold for exempt employees that will increase costs for employers beginning December 1. The increase will reflect a renewed threshold for white-collar workers of $47,476 per year, or $913 when translated to a weekly salary.
This means that anyone earning less than that amount will be eligible for overtime pay. It should be noted that 10 percent of the threshold can be legally compensated through the issuance of incentive pay, commissions or nondiscretionary bonuses paid quarterly. However, the remaining 90 percent would have to qualify under federal and state overtime pay rules.
Any California employer attempting to skirt around these rules after December 1st will run the risk of an overtime pay lawsuit, or a California OSHA lawsuit provided an employee determines a breach in compensation is based on discrimination.
Contractor Fined by Cal-OSHA, Lawsuit Cites Personal Injuries in Blast
McFarland, CA: It was in November of last year that an industrial accident involving a natural gas pipeline led to an explosion that killed one man and badly injured two women living in a nearby home destroyed in the blast.
While a personal injury lawsuit has been filed by family members of the two injured women, Cal-OSHA in late May undertook its own due diligence and fined Big & Deep Ag Development Co. $40,250 in total sanctions for a number of deficiencies the agency had identified.
To wit, the contractor was cited by Cal-OSHA for digging with an expired permit, failing to properly inform the bulldozer operator as to the true location of the pipeline and failure to properly train the operator.
According to The Bakersfield Californian (5/25/16), the owner of Big & Deep admitted to the expired date on the permit, placing the blame on himself. However, in a telephone interview with The Bakersfield Californian, Jeff Alexander stressed that in his view the expired permit had no bearing on the accident, adding that the operator was experienced and knew exactly where the pipeline was.
It was on November 13 of last year when Joseph Michael “Mike” Ojeda, age 44, was operating what was identified as a Caterpillar dozer and ripper in order to prepare land and facilitate the planting of almond trees. While operating the dozer, Ojeda hit a high-pressure transmission pipeline, three feet in diameter.
The spark initiated by the strike ignited the gas, and the resulting explosion killed Ojeda instantly and ripped through an adjacent home where Amalia Leal and her daughter Gloria Ruckman lived, with Ruckman’s newborn baby. While Leal and Ruckman sustained second- and third-degree burns, the infant escaped serious injury.
It is not known if the family of Ojeda is considering a Cal-OSHA lawsuit for wrongful death and alleged unsafe working conditions. It was noted that Ojeda was well- experienced with some 4,000 hours logged working with and around underground utilities.
It should also be noted that one year earlier, in 2014, the same underground pipeline was struck by a worker toiling for the same contractor. In that incident there was no explosion, but evacuations were required until the gas leak was brought under control and the danger passed.
Various state statutes governing California health and safety on the job are designed to guide employers toward maintaining a safe work environment for employees, and to safeguard employees from undue harm while on the job. Cal-OSHA has the authority to investigate and issue fines and sanctions to any employer viewed as having circumvented the rules.
Cal-OSHA has not filed a lawsuit. Nor has the California Public Utilities Commission, which, as of May 25, had still not completed its investigation.
However, the personal injury lawsuit filed by family members of the two burn victims injured when their home was destroyed by the blast is continuing and is expected to go to trial in March of next year.
Proposed Bill Aims at Standards for Indoor Workers
Sacramento, CA: We should know in a little more than a year what Cal-OSHA, the Division of Occupational Safety and Health for the state of California, comes up with in terms of proposals to regulate indoor working conditions with an aim to setting standards for workers who toil indoors.
Such a standard for outdoor workers has been on the books since 2005 - and regularly revisited - in an effort to protect outdoor farm and construction workers from the often intense heat and high sun associated with toiling out in the fields or within a hot construction site. Meal breaks and rest periods, the availability of water and the provision for shaded areas have all been aimed at avoiding heat exhaustion - or worse - heat-related deaths.
Now, Senator Connie Leyva (D-Chino) wants the same kind of standards for indoor workers. Leyva claims that employers such as Amazon, which boasts a climate-controlled and managed environment within its fulfillment centers, are actually in the minority.
Sun exposure within the context of an indoor working environment is not an issue. But temperature can be - either too hot or too cold, with the potential for stale air in both situations. The San Bernardino Sun (5/7/16) reports that in a 2011 survey of workers by Warehouse Workers United, a majority of respondents claimed that excessive heat and cold were a problem, with indoor temperatures reaching as high as 125 degrees Farenheit on occasion.
Critics of the proposed bill claim that such efforts would inhibit growth in the inland logistics industry and hurt the economy. But Leyva isn’t advocating that employers install expensive climate-control systems in their facilities.
Rather, she seeks a set of standards akin to those currently protecting outside workers. The timing of rest periods - and the frequency thereof - would be governed by temperatures in the building. Access to cold water would be another requirement, together with the availability of a climate-controlled “retreat area” to which a worker could retire for a few minutes for relief from excessive heat or excessive cold.
Leyva told the San Bernardino Sun that benchmarks are needed for even so-called “good” employers who advocate for their employees, and play by the rules. “Even good employers don’t have a standard - what kind of access to water, what is the acceptable temperature?” Leyva said in comments published by the San Bernardino Sun.
“The (Division of Occupational Safety and Health) would come up with and propose a standard,” Leyva continued. “I don’t believe they would say, ‘Put in a multimillion-dollar system.’”
Leyva’s bill calls for Cal-OSHA to come up with a set of proposals by July 1 of next year.
California Warehouse Cited for OSHA Violations, Faces Class-Action Lawsuit
Wilmington, CA: A complaint by the National Labor Relations Board (NLRB) together with a California OSHA labor class-action lawsuit filed in late 2014 combine to allege both health and safety hazards, and retaliation against union activity undertaken by workers at the California Cartage Company and Orient Tally Company.
According to The Daily News of Los Angeles (3/30/16), the warehouse is located in Wilmington and is involved in the movement of goods for a number of retail giants including Lowe’s, Kmart and Amazon. Workers at the warehouse have been railing against what they have described as less-than-adequate working conditions at the site, and with the help of a non-profit entity advocating for non-unionized workers, have lodged complaints against three managers at the facility, accusing them of discouraging employee efforts to organize a union.
It is alleged that Hermann Rosenthal, Freddy Rivera and John Rodriguez threatened to fire any employee who participated in union-organizing activities. Those allegations have yet to be proven in a court of law.
The specific working conditions, about which employees are concerned, were not spelled out in the report. However, it was reported that the facility has been the recipient of various Cal/OSHA citations.
According to federal and state laws, employers are mandated to provide workplaces and working environments that are safe and free from unnecessary hazards.
It’s been just over a year that alleged conditions on various fronts at the facility achieved a sufficient level of angst for a class-action lawsuit to be filed in December of last year. That lawsuit alleged wage theft and various labor law violations.
In recent months, employees at the facility, who are tasked with driving forklifts and the loading and off-loading of large appliances and other goods from shipping containers, have been campaigning toward organizing. The Warehouse Worker Resource Center (WWRC) brought the lawsuit in December 2014. Celene Perez, the co-director of the non-profit advocacy group, noted that the more recent complaint by the NLRB outlines a number of alleged incidents from July through October of last year, including one incident where a worker was subjected to an interrogation about employees taking breaks while working in hot conditions.
Perez says the complaint, coming from the NLRB, is an important development. “It is a very big deal for us to have gotten this complaint because it means that the federal government has investigated and found merit,” Perez said in comments published in The Daily News of Los Angeles. She added that the case will go to trial in June unless a settlement is reached. “It sends a clear message and the workers feel validated.”
The WWRC filed various charges relating to alleged retaliatory conduct over the past six months. Those charges caught the attention of the feds, who investigated and filed their own complaint. Case information was not available.
Is California’s Heat Illness Prevention Act Actually Working?
Sacramento, CA: There appears to be a disconnect between what the California Division of Occupational Safety and Health (Cal/OSHA) views as heat-related deaths amongst agricultural workers in the state and deaths that have nonetheless resulted following long hours toiling in the hot sun.
This, following an investigation by The Desert Sun (12/2/15), a newspaper serving Palm Springs. According to the story, reporters were able to access documents through a request under the Public Records Act. Documentation suggested that Cal/OSHA had identified 13 deaths from heat-related causes in the 10 years since the enactment of the state’s Heat Illness Prevention Act (The Act) of 2005.
However, that number does not jive with data associated with a recently settled lawsuit brought by the United Farm Workers (UFW). That data put the number of deaths due to heat-related stresses at more than double those identified by Cal/OSHA. What’s more, the data covered by the UFW covered just a six-year period, from 2005 through 2011, v. the 10-year window identified by Cal/OSHA.
The Desert Sun suggests that part of the disconnect may be due to criteria that Cal/OSHA uses to classify a death as heat related. Of specific cases scrutinized by The Desert Sun reporting team, witnesses described circumstances that had all the markings of heat exhaustion. However, doctors and coroners, whose mandate it is to rule on a cause, could not determine if heat actually caused the death or was a contributing factor.
A death deemed to have been caused by heat exhaustion must be identified plainly with heat as the absolute cause, rather than an underlying contributor - at least in the eyes of Cal/OSHA, according to the report.
Regardless of the interpretation, The Desert Sun opines that the decade-old Heat Illness Prevention Act appears to have not been working, with rates of heat illness remaining effectively unchanged. In that time, heat-related illnesses (and deaths either caused or exacerbated by heat stress) have continued.
Last May (2015) the state strengthened The Act by mandating employers to monitor their outdoor workers for the first two weeks of employment in an area of high heat. Cool drinking water is to be readily available, and suitable shade for rest breaks and meal periods must be provided when temperatures hit 80 degrees.
Once temperatures reach 95 degrees, employers are mandated to provide workers with a 10-minute break with suitable shade once every two hours, as a minimum.
The Desert Sun reported that Assemblyman Eduardo Garcia (D-Coachella) has vowed to investigate in realistic terms how the industry is monitored, and how Cal/OSHA specifically classifies heat-related illness and deaths.
In the meantime, any employer who fails to undertake provisions of The Act - including those provisions updated in May - leave themselves open to litigation should an illness or death occur.
On an unrelated note, Cal/OSHA has proposed a standard for workplace violence prevention. The standard would require health care employers to implement a written workplace violence prevention plan, together with procedures to communicate workplace violence matters to employees.
Provided the standard is adopted, any implemented plan would bar employers from retaliating against employees who seek help from emergency services or law enforcement if a violent incident occurs. This would have ramifications in a hospital or eldercare facility.
California OSHA Labor Lawsuit Seeks to Hold Defendant to Original Settlement
Los Angeles, CA: A California whistleblower who sued his former employer over unsafe working conditions and won a settlement has yet to see a dime after his former employer folded the company and reorganized operations under a different name, allegedly to avoid complying with the settlement. Undaunted, the US Department of Labor has launched a California OSHA labor lawsuit against the former employer of Herbert Alexander.
Alexander, the whistleblower who brought a lawsuit alleging violations of statutes governed by the Occupational Safety and Health Administration (OSHA), complained to his employer following one of his runs as a trucker with the firm, that his rig was leaking oil, was fitted with bald tires and was infested with bedbugs. The trucker noted that he was forced to sleep in motels while on the road, in an effort to secure enough sleep to drive his rig safely.
When Alexander complained to his employer following his return from the road in July of 2013, he claims to have been effectively fired. Alexander claimed in his California OSHA whistleblower lawsuit that his employer docked his pay for the cost of repairs to the truck as well as his accommodations. Further, the company refused to provide him with additional routes, and thus the work dried up.
According to court documents, the defendant, Skyway Inc., entered into a settlement agreement with Alexander in 2013. However, it is alleged the settlement was never honored by Skyway Inc., which reportedly ceased operations only to be reborn under a different name, Skyway Group of Companies Inc. (Skyway Group).
Alexander, together with the US Department of Labor, holds that a company cannot escape a liability through a simple reorganization. “[Skyway Group] has the same owners and officers including [President Rajinder Banghu], operates for the same business purpose, using the same or a similar business model out of the Fontana truck yard, and the same corporate logo and motto as Skyway,” the complaint said. “As the alter ego and/or successor-in-interest to Skyway, Skyway Group is subject to enforcement of the Secretary’s final order, just as Skyway was and is.”
As part of the California OSHA lawsuit settlement, Alexander was to be re-instated as a driver with the firm, and to have his back wages paid. However, Skyway Inc. ceased operations and suspended its corporate registration for the state of California.
The DOL says the defendant cannot employ those changes as a viable reason to escape their obligation to their former driver, who feared for his safety and others on the road due to the alleged condition of the truck he was provided to drive by his employer.
The latest California OSHA lawsuit, filed by the Department of Labor on behalf of Alexander, seeks to hold Skyway Group to the original 2013 settlement that was allegedly never honored.
The case is Thomas Perez v. Skyway Inc., Case number 5:15-cv-01995, in the US District Court for the Central District of California.
Former Coach Sues UCSB, Cites Unsafe Work Environment
According to court documents, plaintiff Cathy Neushul was head coach of the UCSB women’s water polo team - known as the Gauchos - for a two-year period spanning 2011 through 2013. The trouble for Neushul began when she noted a funding discrepancy between the women’s and men’s water polo teams at the same facility.
It was noted that a sum of money, identified as $40,000 was allocated in budgetary documents for the women’s team - funds that were going neither to Neushul or her assistant, but instead were going to an individual that was serving as director for both programs.
It is alleged the individual in question spent all of his time and focus with the men’s team, “exclusively [coaching] the men’s team, had very little involvement with the women’s team, never attended a single women’s practice, and was not a presence at their games,” or so the lawsuit claims.
According to the lawsuit, Neushul raised the funding discrepancy with both the Director of Athletics for UCSB as well as the Senior Women’s Administrator on several occasions.
Instead of the matter being resolved, Neushul alleges she was demoted to assistant coach and her salary was cut by $10,000. The school then, or so it is alleged, re-employed the savings combined with the elimination of a part-time assistant coach for the women’s water polo team - for a combined $15,000 - to continue funding an assistant coaching position on the men’s water polo team.
Neushul subsequently resigned from her position and from the university on November 19, 2013. In her California labor lawsuit, Neushul claimed the athletics department at UCSB was no longer “a safe environment,” or so it was alleged.
Neushul claims in her lawsuit that she has suffered humiliation as well as damage to her professional reputation as a coach, as well as loss of compensation and employment-related benefits through her demotion.
Neushul has brought claims for retaliation under Title IX and gender discrimination, as well as for violations of the California Labor Code. The case is Cathy Neushul v. The Regents of the University of California, Case No. 2:15-cv-06286, in the US District Court for the Central District of California.
Injury Risk Not Lost on Knott’s Plaintiff Who Now Suffers from Vision Problems
It was last year that Kristine Laborte, then age six, was a participant on the Timber Mountain Log Ride when she hit her head against the seatback in front, breaking a bone above her right eye. She was accompanied on the ride by her father, James, who held his daughter on his lap. The incident happened when the ride stopped suddenly at the bottom of the flume, causing both James and Kristine to slide forward. The injury, according to the family’s Amusement Park lawsuit, happened on July 27, 2014.
The plaintiffs assert the injury to their daughter could have been avoided if there were safety measures built into the ride, such as more adequate feet or leg braces installed in the interior of the log-shaped cars to prevent occupants from unexpectedly sliding forward. The Labortes also claim that better monitoring of the water levels at the bottom of the drop could have also prevented the injury to the little girl.
There appears to be some merit to the plaintiff’s claims, given prior compliance issues inherent with Knott’s. According to the Orange County Register (5/13/15), a similar incident in February of 2001 resulted in an order by the California Division of Occupational Safety and Health (Cal-OSHA) to add braces to the logs/cars. Three months later, in May of that year, Knott’s reportedly advised Cal-OSHA that the additions had been duly made, and Knott’s had complied with the order.
Eleven years later, in 2012, Cal-OSHA was back to Knott’s again, this time with an order to enhance monitoring of the ride’s water levels. A subsequent report from Cal-OSHA noted that between May 2013 and January of this year, the water levels on the ride were not properly monitored.
It was during this period that the Laborte Amusement Park Accident occurred.
The summer is high time for amusement and theme parks. With children off school and families on summer holiday, amusement parks are a favorite pastime. Sadly, summer is also the time of year when spikes in Theme Park Accidents and even Amusement Park Deaths occur. Defendants in various lawsuits have been found, variously, to have dropped the ball when it comes to proper and ongoing maintenance, and/or supervision of the facilities.
The Amusement Park Lawsuit notes no fewer than nine previous incidents at the park, from 2000 through 2014 from which children sustained injuries, according to the Los Angeles Times (5/11/15). Had there been sufficient water levels at the bottom of the ride to cushion the stop of the log-shaped car, the impact might have been entirely mitigated or less severe. As it was, the lawsuit claims, there was insufficient water to cushion the car’s arrival at the bottom, resulting in an abrupt stop that threw the little girl’s head into the back of the seat in front, breaking the orbital bone above her eye. She lost consciousness and has suffered from vision problems since.
The Laborte lawsuit was filed in May in Orange County Superior Court. The plaintiffs are asking for punitive damages together with compensation for medical bills.
Respecting Caitlin Jenner and Her Community Under the Law
For some time now, California labor law has protected transgendered individuals from discrimination and harassment. However, a decision by the Superior Court of California, County of Sacramento last spring held that denying transgender employees the right to use gender-identity appropriate facilities remains a violation of the state’s anti-discrimination laws, and other statutes entrenched in the California Labor Code.
That decision, released in March of 2014, held that transgendered employees in the state of California have the right to use gender-identity appropriate change room and washroom facilities in the state of California. Various other states have enacted similar updates to their laws.
Now, the Feds have finally entered the pool with an update to federal codes that mirror California and labor law, as well as similar laws in other jurisdictions related to transgendered individuals.
To that end, the Occupational Safety and Health Administration (OSHA) on June 1 published A Guide to Restroom Access for Transgender Workers.
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, in a released statement. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
The guide itself is detailed, but in sum, the rule is stated simply thus: if a female has transgendered, either emotionally or physically (or both) to male and therefore identifies as male, then that individual has the right and freedom to use the men’s washroom.
The same holds true for Bruce Jenner, who now identifies as Caitlin. It wasn’t that long ago that Jenner was being interviewed on national television about his story and his ongoing transition to female, the gender to which Jenner now identifies. This week, the release of the Caitlin Jenner photo shoot for the cover of Vanity Fair is a stark representation of what Jenner was revealing just a few weeks ago.
Therefore, applying the Bruce Jenner/Caitlin Jenner example to the rule of law, Bruce Jenner identifies as female now (as Caitlin Jenner) and thus, has the right to use the women’s washroom.
The OSHA guide, and the corresponding law, is founded upon the core belief that all employees in the workplace should be permitted, without retaliation, use of the facility that best matches his or her gender identification. At the end of the day, however, the OSHA guide notes that the employee should determine “the most appropriate and safest option for him - or herself.”
OSHA also identifies best polices that provide additional options that transgendered employees may choose, but are at the same time not a requirement. Such options, as available, could include: “Single-occupancy gender-neutral (unisex) facilities, and: Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities,” states the guideline. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.”
The guidelines also speak to the existence of local and state laws and statutes, such as California labor employment law, about which all employees should be conversant.
To summarize, transgendering has long passed the signpost of sensationalism. Rather, gender identification in any form has progressed from tolerance to widespread acceptance; and yet another indication of this is the release, this summer, of Becoming Us, an unscripted “docuseries” on ABC Family, documenting the life of 17-year-old Ben Lehwald of Evanston, Illinois. In the series, which is produced by Ryan Seacrest Productions, Ben’s father Charlie transitions to Carly. The narrative is told from Ben’s perspective as he watches his dad go through his divorce from Ben’s mom Suzy, before undergoing gender reassignment surgery.
In the grand scheme of things, washroom assignment (or reassignment) should be the least of a transgendered individual’s worries. Nonetheless, it is an issue that many states have been grappling with for some time - including California and labor law observed by the state. Now, the Department of Labor through the OSHA guideline will ensure that the rights of everyone are quite properly observed and respected behind the washroom stall.
Caitlin Jenner will use the women’s washroom. It’s only appropriate. And it’s also the law.
Denied Disability: When Injuries Affect Work
ABC News (3/31/14; kesq.com) reports on a teacher who suffered a severe head injury while at work, but has had her disability insurance claim denied. The teacher, Melissa Labayog, was injured when she attempted to break up a fight at her school. She was struck by a student and was reportedly left partially blind and deaf. She also reportedly suffered significant brain injuries.
As a result of her injury, Labayog has switched schools and is now forced to teach in a dark room because she cannot see in bright light. Labayog’s insurance company has reportedly denied her claims, resulting in her filing a lawsuit against the company. The insurance company has so far not commented on the lawsuit.
Injuries that affect a person’s employment can result in that person making the difficult decision between their job or their recovery. Connecticut Law Tribune (4/4/14) reports on Jose Morales, who was injured when his car was hit by another vehicle that failed to stop at a stop sign. Morales suffered shoulder pain that was eventually diagnosed as a partially torn rotator cuff.
Morales was employed as a janitor and laundry attendant at a local hospital when the accident occurred, according to the report. Two doctors recommended surgery but Morales, concerned about the loss of income due to the recovery time following surgery, declined the medical procedure and instead went to physical therapy. So far, Morales’ medical bills total around $13,000.
One of the insurance companies involved in the situation argued that Morales could have had the shoulder surgery, which might have helped him recover. It also argued that an incident in which Morales fell down stairs at work following the car accident had a much more severe impact on his quality of life. Finally, the company argued that a pre-existing back condition also contributed to his pain.
A jury, however, sided with Morales and awarded him $122,274. Because he originally settled with a second insurance company following the car accident, the $50,000 from that settlement will be taken out of the jury’s award.
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