ISSA Legislative & Regulatory Update March 2016
Accessible by: anyone
June 2016 is the Goal for Completing OSHA Safety, Health Voluntary Guideline
OSHA Cites Connecticut Contractor that Misclassified Employees as Independent Contractor
Voice Your Concern Over Proposed Changes to Overtime Regulations Today
OSHA Requests Public Comment on Draft Guidance on Hazard Classification
ISSA Joins in Renewed Effort to Repeal Death Tax
AFL-CIO Explores Ways to Unionize Temps
National Labor Relations Board Pursues Aggressive Agenda
EPA Issues Draft Risk Assessment for Chemical used in Spray Adhesives, Dry Cleaning and Degreasing
The goal for completing the final version of OSHA’s revised Safety and Health Program Management Guidelines is June, the agency’s deputy director for standards and guidance, Andy Levinson, said March 4.
The voluntary guidelines, undergoing their first overhaul since 1989, are the focus of public forums that concluded March 10 with a day-long gathering at the Department of Labor headquarters in Washington.
OSHA hopes employers of all sizes and industries will use the guidance to create their own safety and health programs. The high expectations for the guidelines and the wide range of the draft guidance released in November have encouraged comments from a broad spectrum of safety and health advocates, each with particular concerns.
OSHA’s National Advisory Committee on Occupational Safety and Health (NACOSH) met March 4 to discuss changes to recommend for the draft guidelines and to hear from Levinson.
Levinson told the committee the published guidelines won’t be the last recommendations the agency offers.
Common Concerns. Committee members submitted more than a dozen pages of specific recommendations and concerns to OSHA including the following:
- More emphasis on health hazards, such as ergonomics and chemical exposures;
- Making sure the guidelines can be understood by small employers who don’t have staff safety professionals;
- More information for workers and employers whose locations frequently change, such as building contractors and
- Providing additional sources for information and advice beyond OSHA’s consultation programs.
The committee deliberations showed some of the challenges OSHA faces in writing guidelines intended for a wide audience. For example, members supported the idea that engineering and design are effective, initial ways to eliminate hazards, concepts called “prevention through design” in the “hierarchy of controls” that are familiar to safety professionals. At the same time, committee members said the guidelines should be written in language small businesses understand.
The U.S. Department of Labor’s Occupational Safety and Health Administration cited Royal Construction for seven violations of workplace safety standards at a Farmington work site. A total of $20,240 in fines was proposed. Royal Construction filed a notice of contest with the independent Occupational Safety and Health Review Commission in August 2014 and litigation commenced.
Royal Construction claimed that the workers at the job site were not employees under the requirements of the Occupational Safety and Health Act but instead independent contractors who worked under their own supervision, supplied their own tools and made their own hours.
However, after review, Administrative Law Judge Keith E. Bell found that the Labor Department established the following:
- Royal Construction had employees at the job site, and provided materials, tools, trailer and equipment needed for the project.
- Dzenutis had control over the workers and work site safety.
- Royal Construction determined when and for how long the individuals worked; the work was done as part of the regular business of Royal Construction.
- The company paid hourly wages to the individuals working at the site.
Judge Bell also upheld the citations and proposed penalties, stating that “Employers cannot evade their responsibility by claiming that workers on a job site are independent contractors when the facts show otherwise. We will not hesitate to pursue appropriate legal action to ensure that workers are provided with the safeguards to which they are entitled.”
“Judge Bell’s decision and order upholds a basic tenet of the OSH Act, the employer/employee relationship. Employers have a fundamental responsibility to their employees, to provide them with a safe and healthful workplace,’ said Kim Stille, OSHA’s regional administrator for New England.
Unless industry gets active in its opposition, the U.S. Department of Labor will finalize by July 2016 its proposed sweeping changes to the overtime regulations that would have a substantial and adverse economic impact on ISSA members across the country.
Action Needed. ISSA, therefore, encourages its members to contact your U.S. Representatives and Senators today, and express your strong opposition to the proposed cumbersome and costly changes to the Department of Labor’s (DOL) overtime regulations.
Click below for an easy way to contact your members of Congress about this important issue.
Background. Under the FLSA, there is a two-part test in order to exempt an employee from overtime pay eligibility. First, the employee has to earn over a certain amount per week/year; and second, the employee has to hold a position that falls within what is known as a “white collar” exemption where the employee performs duties that are executive, administrative, or professional in nature. This second qualification is known as the “duties test.”
The proposed rule seeks to increase the salary threshold from $455/week ($23,660 annually) to $970/week ($50,440 annually). High compensated employees’ salary level is also increased from $100,000/year to $122,148/year. The proposal also seeks to establish a mechanism for salary thresholds to be adjusted automatically as a function of inflation or a certain percentage of salaried workers.
Act Now. Please click HERE for an easy way to contact your U.S. congressional representatives and express your opposition to the proposed changes to the overtime regulations.
ISSA thanks you in advance for taking the time to contact your Representative and Senators on this topic that is critical to the U.S. business community.
OSHA is requesting public comment on its draft Weight of Evidence (WoE) guidance document that is intended to complement the guidance on Hazard Classification.
The Hazard Classification guidance document is an update of the Guidance for Hazard Determination (2006). The WoE draft guidance has been developed to assist manufacturers, importers and employers on how to evaluate scientific studies under a WoE approach for hazard communication purposes. Specifically, this guidance outlines the types of information to consider in the process of classification of a substance for health hazards, how to evaluate the strength of evidence in classification, the scope and use of WoE, and detailed considerations in the use of WoE as per the Hazard Communication Standard.
The draft guidance and instructions on filing comments can be found on OSHA’s web site. OSHA welcomes your comments on this draft guidance, and is particularly interested in answers to the following questions:
- OSHA’s primary goal in the draft WoE guidance is to provide classifiers with an overview on how to approach a weight of evidence evaluation using the criteria that was adopted under the Hazard Communication Standard (29 CFR 1910.1200). Has OSHA achieved this goal?
- OSHA intended to write this draft guidance in language that is appropriate for, and easily understood by, personnel who would be primarily responsible for the classification process. Has OSHA achieved this objective?
- OSHA has also provided guidance on how to use other authoritative bodies that use a weight of evidence or systematic approach. Is this type of guidance helpful? Are there other authoritative bodies that OSHA should reference that that provide weight of evidence evaluations that would be relevant to worker exposures?
- To simplify the guidance OSHA has primarily focused on chronic hazards: Carcinogens, germ cell mutagens and reproductive toxicants since these are more complex endpoints and generally need a higher degree of expert judgement to interpret studies. Did OSHA adequately identify the key considerations for a WoE evaluation of these toxicants? Was the OSHA discussion of the WoE approach appropriate for this guidance document?
- OSHA has provided a section on classification based on a single positive study. Was this section useful?
- OSHA has provided a series of examples to demonstrate the principles discussed in the Weight of Evidence guidance document. Are these examples helpful? How can they be improved?
Guidance for Submitting Written Comments; Weight of Evidence (Docket No. OSHA-2016-0004); Electronically: Please submit your comments and attachments electronically at www.regulations.gov, which is the federal e-Rulemaking portal. Follow the instructions online for making electronic submissions. When uploading multiple attachments into the portal, please number all of your attachments because the site will not automatically number them. This will be very useful in identifying all attachments. For example, Attachment 1—title of document, Attachment 2—title of document, Attachment 3—title of document, etc.
Instructions: All submissions must include the agency name and docket number (Docket No. OSHA-2016-0004). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as Social Security numbers and birthdates.
Accessing the Docket: To read or download comments and materials submitted in response to this guidance document, go to Docket No. OSHA-2016-0004 at www.regulations.gov, or to the OSHA Docket Office at U.S. Department of Labor, Room N–2625, 200 Constitution Avenue, N.W., Washington, DC 20210, telephone (202) 693–2350. All comments and submissions are listed in the regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download from the website. All comments and submissions are available for inspection at the OSHA Docket Office. Electronic copies of this guidance document are available at www.regulations.gov. This document, as well as news releases and other relevant information, is also available on OSHA’s website at www.osha.gov.
ISSA, along with 80 other trade associations, signed onto the Family Business Coalition (FBC) letter supporting the Death Tax Repeal Act of 2015. The large showing of support helped the business community to achieve the first House vote in a decade when H.R. 1105 passed 240-179.
This year, FBC will be reissuing the letter on the Senate side and urging Senate action on the House passed legislation. The letter to the Senate, signed by ISSA and other trade organizations, urges the Senate to take the next step in the legislative process by bringing the House passed legislation to the floor for a vote. Senator Thune’s (R-SD) mirror legislation to the House passed bill, S.860, has already amassed support from the majority of the Republican caucus.
ISSA and the Family Business Coalition support full and permanent repeal of the federal estate tax for the following reasons:
The death tax contributes a very small portion of federal revenues. The estate tax currently accounts for less than one percent of federal revenue. There is a good argument that not collecting the estate tax would create more economic growth and lead to an increase in federal revenue from other taxes. A 2016 Tax Foundation analysis found repeal of the estate tax would increase federal revenues by $3.3 billion per year using a more realistic macroeconomic analysis. In addition, the estate tax forces family businesses to waste money on expensive insurance policies and estate planning. These burdensome compliance costs make it even harder for business owners to expand their businesses and create more jobs.
The death tax falls particularly hard on minorities. The estate tax threatens to confiscate generational capital from African-American and minority communities. Estate tax liabilities bankrupted the Chicago Defender – the oldest black-owned daily newspaper in the United States – and will reduce net African-American wealth by 13 percent, according to a study conducted by Boston College professors John Haven and Paul Schervish. According to a 2004 Impacto Group poll, 50 percent of Hispanic business owners know someone who sold their business to pay the estate tax and a quarter expect to sell their business because of the estate tax.
A super-majority of likely voters support eliminating the death tax. Poll after poll has indicated that a super-majority of likely voters support repealing the estate tax. Typically, two-thirds of likely voters support full and permanent repeal of the estate tax. People instinctively feel that the estate tax is not fair.
The death tax is unfair. It makes no sense to require grieving families to pay a confiscatory tax on their loved one’s lifetime savings. Often this tax is paid by selling family assets like farms and businesses. Other times, employees of the family business must be laid off and payrolls slashed. No one should be punished for fulfilling the American dream.
The negative effects of the estate tax make permanent repeal the only solution for family businesses and farms. Repealing the estate tax will help America’s family businesses create jobs, expand operations, and grow the economy. We thank you for your continued leadership on this important issue.
AFL-CIO Explores Ways to Unionize Temps
In light of decreasing enrollment, the AFL-CIO is testing out different strategies for organizing temporary workers across the country, but so far hasn’t settled on one approach, according to union officials.
Labor advocates say unionizing temp workers would help ensure their safety on the job. Further, with private sector union membership down to 6.7 percent, rolling up even some of the nation’s millions of temps would give the labor movement a boost.
One challenge unions are contending with is that employers facing an organizing drive can hold out the possibility of permanent employment to dissuade temps from unionizing. For example, the United Auto Workers recently started an organizing drive at a Nissan facility in Canton, Miss., where fully half the workforce is temporary.
In response, Nissan started hiring some of its temporary workers as permanent employees.
Where Unions Can Win. In cases where employers aren’t willing to make temporary workers permanent, unions may be able to find success. For example, last September the workers at Bob’s Tire Co. in New Bedford, Mass., who are employed at BJ’s Temp Service, voted 65-5 to join the United Food and Commercial Workers.
The number one reason why people temp is to be a permanent employee, and after working there for years, the Bob’s Tire workers realized they were not going to get there without the support of a union.
Looking ahead, the trend of increasingly longer temp assignments could make organizing easier, presumably because workers are easier for unions to contact when they remain at the same worksite.
In 1970, the average temp assignment was one week. Today, the average assignment last five months, and a quarter of all temp workers have been at their jobs for more than a year.
Not Relying on Courts. Union representatives said organizing is particularly important because the AFL-CIO doesn’t feel it can rely on legal rulings clarifying that both a host employer and a staffing agency are responsible for worker protections.
Also many believe that temp workers may be safer in unionized workplaces in part because they often have rules about how many temporary workers are allowed.
According to Peg Seminario, safety and health director at the AFL-CIO, too many employers are using temp workers as a way of passing off their responsibilities and costs to someone else like temp agencies. “But these costs end up somewhere,” Seminario said.
In parallel with their organizing work with temps, unions are also looking at the possibility of organizing workers in the gig economy. To date, unions haven’t hit on a consistent winning strategy but union officials agreed that companies like Uber are no different from a company that uses temp labor, and underscored the importance for labor activists not losing sight of that growing part of the economy.
As you may be aware, there has been no let-up on the pace of regulations coming out of the Department of Labor and the National Labor Relations Board. There has been recent activity from the regulators and in the courts that we thought would be of interest to ISSA members.
ISSA is a member of the National Association of Wholesaler-Distributors which leads the Coalition for a Democratic Workplace (CDW), which in turn is participating in a number of regulatory proceedings, as well as in cases before the Board and the federal appeals courts. A summary of some of the more recent actions follows.
Specialty Health Care/Micro-bargaining units: The NLRB continues to approve “micro” collective bargaining units – units hand-picked by the union and opposed by the employer – consisting of small numbers of workers within a larger workforce. A number of those Board decisions are being appealed to the federal circuit courts.
Joint Employer: The Board has changed the long-standing definition of what constitutes a “joint employer” for collective bargaining purposes, abandoning the requirement that a joint employer must share direct control over terms of employment, and replacing that with a much looser and broader standard of “indirect” control. Most of the focus in the joint employer debate has been on franchise organizations, but the new standard will reach well beyond franchisees, and could impact any employer that uses subcontractors or staffing agencies. NAW and CDW have been involved in several cases challenging the Board’s Joint Employer decisions, and we expect much more Board activity on this front.
Persuader Rule: The Department of Labor’s Office of Labor Management Standards (OLMS) has been working for several years on new rules governing employer arrangements with consultants who advise them in labor organizing campaigns but do not directly interact with workers. Last December the Department sent the long-awaited rule to the Office of Management and Budget for review, and a final rule could be released as soon as April. Although the rule technically deals with a new requirement that employers disclose their relationships with so-called “persuader” consultants, the real-life impact of the anticipated rule will make it very difficult for an employer without in-house labor counsel to obtain legal advice during a union organizing campaign – and may even bar a trade association from providing to its members fact sheets on what an employer may and may not do during a union organizing campaign.
Protected Concerted Activity: The NLRB has been very aggressively inserting itself into workplaces – both unionized and non-union – asserting the right of employees under the National Labor Relations Act to engage in “concerted activity” concerning their working conditions, including union organizing activity.
In March, 2015, the Board released a 30-page “Report of the General Counsel Concerning Employer Rules” describing “the types of rules that are frequently at issue before us” in employee handbooks. Recently the Board has – on its own initiative – reviewed the employee handbooks of employers with cases before the Board, and struck down handbook provisions that were completely unrelated to those cases. The Board has struck down handbook provisions dealing with the use of social media; confidentiality requirements; disclosure of personally-identifiable information about the company, other employees and/or customers; use of video recording devices on company property; inappropriate behavior; anti-violence admonitions; speaking to the media; use of trademarks and logos; dress codes . . . and the list continues to grow.
Employers are well advised to review their employee handbooks in the context of the report of the NLRB General Counsel. To view, go to:
Captive Audience Meetings: In January, 2016, a group of 106 law professors petitioned the NLRB to promulgate a new rule which would require employers that hold meetings to speak to their employees during work hours about union representation to allow unions equal time to speak to employees in favor of union representation. If the Board promulgates the rule as requested, an employer which conducts “captive audience” meetings during a union organizing campaign would be required to allow non-employee union organizers to participate in similar meetings during normal business hours and on company property; if an employer refused to do so, the Board could set aside a subsequent representation election should the union lose.
EPA Issues Draft Risk Assessment for Chemical used in Spray Adhesives, Dry Cleaning and Degreasing
The U. S. Environmental protection Agency (EPA) released for public comment and peer review a draft risk assessment for 1-Bromopropane (1-BP) used in spray adhesives, dry cleaning (including spot cleaners) applications, and degreasing uses.
“This draft assessment will provide workers and consumers with critical information about the risks associated with using 1-BP in these applications,” said Jim Jones assistant administrator for the office of chemical safety and pollution prevention. “Public and scientific peer review is an integral piece to ensure we use the best available science in evaluating this chemical.”
The draft assessment of 1-BP, also known as n-propyl bromide, was conducted as part of EPA’s Toxic Substances Control Act (TSCA) Chemical Work Plan assessment effort. The chemical showed acute risks to women of childbearing age from adverse developmental effects. Other non-cancer and cancer health risks were identified for workers with repeated and chronic exposures, including neurotoxicity, kidney, liver, and reproductive toxicity, and lung cancer.
In addition to EPA’s assessment, the National Institute of Occupational Safety and Health (NIOSH) has issued a draft criteria document for worker exposure to 1-BP, and the Agency for Toxic Substances and Disease Registry (ATSDR) examined the hazards of 1-BP associated with different exposure durations. While each agency’s review has a distinct focus based on their mandates, they draw similar conclusions about the health hazards of 1-BP. The EPA, NIOSH, and ATSDR will continue to coordinate in addressing concerns associated with this chemical.
EPA recommends the public carefully follow product label directions and take precautions that can reduce exposures, such as using the product outside or in an extremely well ventilated area and wearing appropriate protective equipment to reduce exposure, particularly inhalation.
As EPA continues to support much needed reform of the nation’s chemicals management legislation, it continues to evaluate chemicals that may pose risks.
EPA is seeking public comment of this draft assessment for 60 days. The document is available at: www.regulations.gov docket number: EPA-HQ-OPPT-2015-0084 and will be peer reviewed by the EPA’s Chemical Safety Advisory Committee (CSAC) in the spring of 2016.
Additional information on the 1-BP draft Risk Assessment and other Work Plan Chemicals can be found at: http://www.epa.gov/assessing-and-managing-chemicals-under-tsca/assessments-tsca-work-plan-chemicals.
The California Air Resources Board (ARB) staff has posted draft 2013 data from the Consumer and Commercial Products Survey (Survey) for public review, and has revised the 2015 Reporting Kickoff Webinar date.
The draft data are presented in two spreadsheets. The first spreadsheet is a list of chemical assignments for the volatile organic compounds (VOCs), low vapor pressure volatile organic compounds (LVP-VOCs) and exempt volatile organic compounds (eVOCs) that were reported to ARB as part of the Survey.
The second spreadsheet presents a list of down-the-drain categories for which ARB staff applied an emission adjustment factor. Also, an updated list of all responsible party companies
that reported products for each survey category is presented.
The newly posted materials are available on the Consumer Products Program Webpage at:
http://www.arb.ca.gov/consprod/regact/2013surv/2013main.htm. In a few months ARB staff plans to release 2013 emissions data and ingredient profiles. Please send any comments regarding this document to firstname.lastname@example.org by COB Friday, February 26, 2016. In the subject line of the email, please use “Draft 2013 Data Comments.”
Also, please note the upcoming dates:
1. On May 1, 2016 preliminary fee letters will be sent out to all companies subject to the Consumer Products Fee. This year the 2013 Survey data will be used for the fee calculation so there may be some companies that are added to the program and others that may no longer be over the fee emissions threshold of 250 tons of VOC per year.
2. On July 1, 2016 reporting of 2015 data begins. To kickoff off this process a webinar is scheduled on July 6, 2016 at 10am PST. To register, please click on this link:
ARB’s Consumer Products Program is a key part of overall efforts to reduce the amount of smog-forming VOCs, toxic air contaminants, and greenhouse gasses that are emitted from the use of chemically formulated consumer products in California. ARB’s Consumer Products Regulations have resulted in reduced statewide emissions from consumer products by an estimated 50 percent since 1990. ARB’s Survey is an important step in collecting information on consumer products that are sold or supplied for use in California. The data collected from the Survey are designed to support the statewide consumer product inventory, speciation profiles used in criteria pollutant modeling, and future rulemakings.
If you have any questions about the draft 2013 data or have general questions regarding the Consumer Products Program, please contact email@example.com. General information about the Consumer Products Program is also available here:
ISSA invites you to attend our complimentary webinar on the Regulation of VOCs in Chemical Cleaners scheduled for Monday, April 4, 2016 at 11 a.m. Central (12 p.m. Eastern).
This program is part of ISSA’s webinar series that covers the labeling and hazard communication regulations for chemical cleaners—see www.issa.com/cleaners.
- Volatile organic compounds (VOCs), commonly found in chemical cleaners, contribute to the formation of ozone in the lower atmosphere—a significant health and environmental hazard. As a consequence, the EPA and a patchwork of state governments regulate the VOC content of consumer and commercial cleaning products. This critical webinar will provide an overview of those regulations and how they impact distributors and manufacturers of chemical cleaners.
- To learn more, including how to register for this complimentary event, please click here.
Additional Information. Please contact Bill Balek, ISSA, firstname.lastname@example.org for more information.
This webinar series is sponsored by Avery Products Corp.
Learn about Avery UltraDuty™ GHS chemical labels at www.avery.com/ghs.