Category: Commercial

Connection Between Overtime and Safety Might Be Overstated

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In a study documented in the February 2007 edition of the Journal Of Occupational and Environmental Medicine, Harris Allen Jr. PhD, Thomas Slavin MS, MBA, and William Bunn III MD, JD, MPH, determined that despite research to the contrary, there is no evidence that long work hours cause across the board adverse outcomes for employees. The researchers did say that when weekly schedules hit 60+ hours, workers did report new injuries and health problems, but these were mostly attributable to factors like prior poor health rather than to the long hours themselves.

The study was conducted by comparing information compiled in a database for almost 2800 workers at a heavy manufacturing plant. The researchers analyzed the effects of work hours on a broad range of health, safety and productivity outcomes. The unidentified company used in the study strongly encouraged employees to work overtime, but didn’t mandate it. Workers at the plant clocked an average of 43 hours per week.

The results of the comparison challenged the widely held belief that each hour an employee works beyond 40 hours increases health and safety risks and reduces productivity. In fact, the researchers didn’t find any negative effects until the 60-hour-per-week mark. And even when workers reached this mark, the only negative consequences the researchers found were an increased risk of workers’ compensation claims for hourly female employees with a history of such claims and new musculoskeletal diagnoses for older workers.

Furthermore, while employees in these two subgroups showed a higher rate of injuries and other health problems when they worked 60+ hours, employees with other job and demographic characteristics showed no additional safety or health problems when they worked schedules of 60 or more hours. In addition, employees who worked from 48 to 59 hours showed no increase in physical or mental health issues regardless of their job and demographic characteristics.

The researchers went on to note that their findings also challenged policies like the Working Time Directive established by the European Union to protect workers from exploitation by employers. While it addresses employment issues such as how many breaks employees can take, and how much time off they are entitled to, the directive’s most significant regulation is aimed at limiting the average working time for employees in the European Union to 48 hours a week.

The conductors of the study believe that policies like this one may provide an obstacle that keeps private-sector employers from being competitive. They felt that employers whose operations are structured in ways that are maximized when employees work overtime were especially hindered.

The researchers concluded that although work hours are a factor, they should be considered in conjunction with other factors that comprise the larger context within which employee health, productivity and safety outcomes are determined. More emphasis needs to be focused on prior health and other factors that may be exacerbated by the number of hours worked. These are better predictors of employee safety and lost productivity.

Ten Tips for Avoiding Legal Malpractice

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Statistics show that in any given year, a minimum of five to six insured lawyers out of every 100 in private practice experience a malpractice claim, according to the Colorado Bar Association. In other words, a firm with 20 lawyers could be the recipient of a claim every year. As exposure to legal malpractice claims continues to rise, it is an important function of law office management to establish effective loss prevention practices:

·   Develop a standard calendaring system – This should contain all items to be calendared, deadlines for the various cases being handled, as well as deadlines for critical events. It should also include frequent reminder dates. The most effective calendaring system will have tracking procedures that identify the author of a particular entry.

·   Know the signs of substance abuse and depression – Heavy workloads can often result in an attorney becoming depressed or compensating through substance abuse. Knowing the warning signs associated with each scenario can prevent the firm from being hit with a malpractice suit because of a dysfunctional attorney. Symptoms of substance abuse include Monday morning tiredness, missing deadlines and appointments and neglecting mail and phone calls. Behavioral changes associated with depression include misplaced anger, frequent bouts of crying, self-criticism, becoming easily distracted, and lack of interest in every day activities.

·   Maintain good client relations – When accepting a new client, an attorney should discuss the purpose for which the firm was hired, reporting schedules, fees and billing arrangements, and client obligations. All of this information needs to be documented in writing and given to the client. Also, be sure the lines of communication remain open throughout the attorney-client relationship.

·   Screen clients carefully – Establish a policy of screening clients using a pre-determined set of criteria. Hold each attorney accountable for using those criteria.

·   Conduct thorough research and investigation – Some of the most common errors include failure to correctly apply the law, failure to determine a deadline, inadequate discovery and investigation, poor planning, and errors in the choice of procedure. The attorney of record should review staff work to ensure the accuracy of their work.

·    Avoid conflicts of interest and matter – Avoiding conflicts of interest involves establishing and updating a database of all clients and matters handled. To avoid conflicts of matter, create the practice of circulating a “new matter memo” to all attorneys and support staff whenever the firm accepts a new case. 

·   Never become inappropriately involved in a client’s interests – Accepting a director role in a client’s company, investing in a client’s securities, transacting business deals with a client, agreeing to contingent cash fees, and soliciting investors for a client’s business can result in a host of problems.  For example, the firm could be held liable for the attorney’s activities as the director in a client’s company or face conflict of interest charges because of an attorney’s personal involvement or investment in a client’s business.

·   Document all work – Establish a system for verifying the accuracy and content of all documents such as letters, briefs, contracts and motions. Also create separate files to store all documents prepared or received for each client matter.

·   Avoid fee disputes – Document fees and the scope of work in all matters. Bill on a monthly basis unless the client has asked for a different arrangement. Provide the client with detailed billing statements that include who performed the work and how much time was required.

·   Never delude yourself into believing you are immune from a malpractice suit – Your best defense is to remain acutely aware of how prevalent malpractice suits have become. It is this awareness that will motivate you to establish and maintain effective loss control procedures.

Your Hands Need Protection from Work Injuries Too

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You probably aren’t aware of how complex a piece of equipment your hands are. There are a total of 27 bones in your hand and wrist. These bones are joined together by ligaments, which also hold the joints in place. Nerves carry messages from your brain to your hands and fingers to help them move. All of this intricate machinery is wrapped up in a layer of skin.

The skin provides a barrier against foreign objects, as well as heat and cold. The skin on the back of your hand is thin and elastic, but on the palm, it is thicker to provide traction, cushioning and insulation.

Just like any other delicate piece of equipment, your hands need to be safeguarded while you are working. The most common sources of injury stem from mechanical hazards from tools, equipment, machines, structures and vehicles such as:

·   Chains, gears, rollers, wheels and transmission belts

·   Spiked or jagged tools

·   Cutting, chopping and grinding mechanisms

·   Cutting tools such as knives and presses

·   Falling objects

You can make your hands less vulnerable to these risks by following these safety tips:

·   Work at a pace at which you feel comfortable – The number of hand injuries you will have is in direct proportion to how quickly you work.

·   Keep alert – Stay focused on what your hands are doing whenever you are using tools or machinery.

·   Use a push stick to feed a circular saw.

·   Handle the tools and equipment you work with properly – Never take shortcuts.

·   Use wrenches that properly fit the nuts and bolts you wish to tighten.

·   Use long magnetic poles for retrieving items from places that are too dangerous for hands to reach.

·   Don’t hold the workpiece in your hand while using a hand tool because the tool could slip and cause injury.

·   Never try to repair power tools or machinery without first checking that the power is shut off and the machine is locked out.

·   Wear the appropriate gloves when handling chemical substances.

·   Wash your hands thoroughly with soap and warm water or use special cleansers, especially after direct contact with a chemical substance.

·   Don’t wipe your hands with chemically contaminated rags.

·   Don’t operate machinery if you are taking any medication unless your doctor tells you it is safe to do so. Some drugs can slow your reflexes, which makes your hands vulnerable to injury. 

Specialized Insurance Available for Green Construction

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Weather patterns have become increasingly erratic over the last several years. Heat waves, droughts, mudslides, and increased hurricane activity have become the norm. In 2004, four major hurricanes pummeled Florida; the Gulf Coasts of Louisiana, Mississippi and Alabama are still recovering from 2005’s Hurricane Katrina and its ensuing floods. Between these disasters and increasing attention from politicians and the media, the problem of global climate change has become a major issue. As a result, the insurance industry has begun to devise new products and strategies for dealing with this problem.

Some insurers are beginning to offer specialized “alternative energy insurance” policies. For example, one company is writing policies to cover alternative energy system performance. This policy insures against the risk that a deficiency in the design of alternative energy technology will result in the under-performance of a facility. The company designed it to help owner-operators of facilities meet the needs of lenders concerned about their investments. Another company has broadened its coverage for commercial buildings to include alternative energy systems. It also will insure against loss of income when alternative energy systems suffer damage and extra expenses when the building owner must buy power from the grid while the system undergoes repair.

At least one insurer offers special coverage to encourage commercial building owners to replace destroyed buildings with new ones using green technology. It gives the property owner several green technology options, including:

  • Non-toxic, low-odor paints and carpeting
  • Energy-efficient electrical systems
  • Interior lighting systems that meet independent energy efficiency standards
  • Water-efficient plumbing systems
  • Enhanced roofing and insulation materials to reduce heat loss.

Anticipating less severe and less frequent losses, the same company offers rate credits to green building owners. It has found that most losses in traditional buildings are from electrical fires, heating and air conditioning system fires, and plumbing leaks. The company expects green technology to make these events less likely.

Another insurer has introduced for commercial building owners a new policy that encourages green building. It features coverage for:

  • The increased cost of green building alternatives
  • The expense of re-engineering and re-certifying green buildings
  • Vegetative roofs, and
  • Additional time to restore operations so that building repairs can include green alternatives.

Insurers are also educating their clients about the implications of climate change. Recognizing that courts could hold businesses liable for future environmental damage, insurers have worked with corporate boards and officers to encourage planet-friendly business practices. Their hope is that actions taken now will reduce the number and size of future liability insurance claims.

While only a small number of insurers offer specialized policies for green construction now, the success of these products will encourage other companies to follow suit. Also, as green building technologies become widespread, the desire to attract and retain business will force insurers to compete with policies of their own. Insurance agents can identify companies that offer these coverages and make coverage recommendations to property owners.  As businesses and households everywhere take steps to reduce their carbon footprints, make certain that your insurance coverage is keeping up with those steps.

Worksite Safety Is a Top-Down Process

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Most safety programs found on construction sites focus on worker buy-in to accomplish safety objectives and create a safer work environment. The typical methods employed have been to train and re-train workers, provide incentives for achieving safety goals, develop disciplinary consequences for failure to comply and monitor the success or failure of the safety program by auditing worker performance. While this methodology provides some measure of success, ultimately, it will reach a point of diminishing returns.

This type of approach is “bottom-up.” In other words those with the least ability to make decisions that can affect outcomes are given the responsibility for the overall success of the system. For a safety program to function as planned, it must be managed properly. Managing requires the ability to plan and control the effective use of resources, assess risk and make decisions to eliminate or at least minimize that risk. These are “top-down” responsibilities, meaning they fall under the responsibility of those in management. Therefore, the success of any construction site safety program has to start with management buy-in and follow through to the workers.

Management buy-in has to be more than just lip service. Workers follow by example, not words. If management fails to carry out safety program requirements by allowing workers to take shortcuts to meet productivity quotas, they undermine the program at its very core. To create a safe work environment, safety procedures must become an inherent part of operations and workers must be required to follow them at all times, even if they might slow productivity.

The most important management figures in this scenario are foremen because they have direct oversight of work crews. The foreman has the authority to direct how work is performed and make necessary decisions to accommodate changes. They should be held responsible for ensuring that the work has been properly planned, a risk assessment has been conducted, and that only safe work practices are followed on the worksite.

There is often a breakdown in the adherence to safety on this level because newly promoted supervisors are not provided management training in directing work flow or managing change. They must be trained to meet the organization’s goals and objectives by managing performance. To manage performance, foremen need to learn how to establish objectives and create standards that will accomplish productivity goals without sacrificing safety. They also need to be trained in how to communicate these objectives to employees and provide motivation to comply. In this way, both management and workers will have clearly established expectations for which they can be held accountable.

The final component in the success of any safety program is the organization itself. It must provide the resources, knowledge, and tools to enable management and employees to be successful. It is this support that keeps the safety program from becoming a stand-alone incentive and rather integrates it into the overall operation, which is the best way to ensure its success.

The EEOC Strengthens Commitment to Filing Class Action Suits

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In 2006, the Equal Employment Opportunity Commission changed its strategy when it announced plans to file more class action suits. This shift was predicated on the decrease in the number of private-sector discrimination-related class action suits and increase in wage-hour class actions. As a result of this decline in discrimination class actions, the Commission’s position may indicate a trend toward more government-led class actions in this area.

The EEOC is in a unique position to litigate this type of suit because it is not required to meet the strict requirements to maintain a class action set forth in Rule 23 of the Federal Rules of Civil Procedure. In addition, the agency isn’t hampered by considerations of whether the monetary compensation won will be worth the expense of a trial.

The Commission is also spurred on in its decision by the belief that a national approach to litigating workplace civil rights is necessary due to a lack of consistent effort on the part of the private sector. The Commission itself is guilty of not identifying widespread discrimination in the past, and this shift is seen as attempt to make the agency more proactive.

What means will the agency use to evaluate which cases require class action treatment? Its primary sources will be:

·               Data gathered through EEO-1 surveys of private employers of 100 or more employees

·               Analyses designed by private statisticians who act as consultants to the Commission

·               Charges filed by claimants

·               Its own databases

·               Pending litigation

·               Long-term analysis of EEO-1 reports

In light of this emphasis on rooting out systemic discrimination, employers need to be increasingly vigilant. Here are some guidelines that can help you prevent becoming party to an EEOC-initiated class action suit:

1.                  Keep your affirmative action plans updated so that when analyzing, the data will identify problem areas in recruitment, hiring, transfer, promotion, compensation, termination, or other terms and conditions of employment.

2.                  Review the criteria used for hiring, firing and other personnel decisions to identify standards or actions that can be perceived as discriminatory.

3.                  Review instances in which a personnel decision impacted negatively on an employee or employees to be sure that all criteria used to make the decision was job related and the result of the need to maintain business operations.

4.                  Provide updated training for management involved in interviewing, hiring, job assignment, compensation, job advancement, and termination to ensure that they understand their obligations under the equal employment opportunity laws.

5.                  Inform management of the negative impact that e-mails have on the defense of claims, especially if careless phrases are used, insulting comments are made or e-mails are used for inappropriate purposes.

6.                  Publish company policies that spell out a zero tolerance for all forms of discrimination, harassment, and retaliation. Train non-management employees in those policies and their obligation to report immediately any actual or perceived harassment, discrimination, or retaliation.

7.                  Post and regularly distribute policies regarding reporting harassment, discrimination, or retaliation.

8.                  Develop a program through which employees receive severance pay or other consideration in exchange for executing binding releases that comply with the Older Worker Benefit Protection Act.

9.                  Keep and regularly review electronic data to identify potential problems and to avoid the possibility of it becoming damaged.

Learn How to Protect Yourself from Machine Accidents

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In 2002, the Bureau of Labor Statistics (BLS) reported that 92,560 injuries, which resulted in lost time from work, were caused by machinery. The agency ranked the top injury causing machines according to the number of accidents that occurred during their use:

1.   Metal, woodworking and special materials machinery (19,269 injuries)

2.   Material handling machinery (16,183 injuries)

3.   Special process machinery (15,576 injuries)

4.   Heating, cooling and cleaning machinery (13,330 injuries)

5.   Unspecified machinery (6,148 injuries)

6.   Construction, logging and mining machinery (6,069 injuries)

The BLS also found that machinery was the chief source of fatal occupational injuries in 483 of the 5,915 fatalities during 2002.

If you use machinery as part of your employment, you need to know how to protect yourself from the hazards that machines pose. The following list of guidelines for correct machine use was compiled by Wake Forest University:

1.   Wear safety glasses, goggles or safety shields designed for the type of machine work being done.

2.   Be sure that all machines have effective and proper working guards.

3.   Replace guards immediately after any repairs.

4.   Do not attempt to oil, clean, adjust or repair any machine while it is running.

5.   Do not leave a machine while it is running. Someone else may not notice it is still running, and be injured.

6.   Do not try to stop the machine with your hands or body.

7.   Always see that work and cutting tools on any machine are clamped securely before starting.

8.   Get help when handling long or heavy pieces of material.

9.   When working with another person, only one should operate the machine or switches.

10.   Do not lean against the machine.

11.   Concentrate on the work and the machine at all times; it only takes a moment for an accident to occur.

12.   Do not talk to others while they are operating a machine.

13.   Be sure you have sufficient light to see clearly when doing any job.

14.   Wear short sleeves or roll sleeves up above the elbow.

15.    Don’t wear bracelets, rings, etc., when operating machines.

16.    Never use compressed air for cleaning machinery.

Keep in mind that although your company may be extremely diligent about guarding machinery, you must still exercise caution because there are some operations that cannot be completely guarded. You should also remember that even though machines are equipped with guards, it is still possible to get your hands and fingers in a machine’s danger zone.

Adhering to these guidelines and any additional ones that your company has in place should lessen the chances of a workplace machinery-related accident happening to your or your co-workers.

Cover Your Home Office with Necessary Business Insurance

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If you run a business from your home, don’t make the error of believing your current homeowner’s insurance policy covers the loss of expensive business equipment. Although many homeowner’s policies offer a small amount of insurance coverage for inventory, there are strict exclusions for liability claims arising from any “for-profit” activities.

While some office-only types of businesses can be insured against liability claims under the homeowner’s policy, professional liability insurance needs would not be included. Insurance packages created specifically for in-home businesses are available at a moderate cost.

An average homeowner’s policy provides only $2,500 coverage for business equipment, which frequently is not enough to cover all business property. You may also need to consider coverage for liability and loss of income. Be aware that insurance companies differ quite a bit in the types of business operations they cover. Taking the time to shop around for coverage options, as well as pricing, will pay off in the long run.

No matter what type of policy you choose, if you’re a professional working out of your home, you probably need professional liability insurance. Depending on the type of in-home business you operate, special policies may be required. You have three basic insurance choices, depending on your specific business:

Homeowner’s Policy Endorsement

In order to double your standard coverage for business equipment, such as computers, you may be able to add a simple endorsement to your existing homeowner’s policy . For as little as $25, you can increase the policy limits from $2,500 to $5,000. Some insurance companies will permit you to increase your coverage up to $10,000 in increments of $2,500.

In-Home Business Policy/Program

An in-home business policy renders more comprehensive coverage for liability and business equipment than a homeowner’s policy. These policies, which are also referred to as “in-home business endorsements,” differ substantially depending on the insurer.

What if you have additional employees working in your home? Some in-home business policies allow a certain number of full-time employees, usually up to three. In-home business policies include extended liability insurance for higher amounts of coverage. For example, they may provide protection against lawsuits for injuries caused by your product and/or service offerings.

Business Owners Policy (BOP)

Developed specifically for small-to-mid-size businesses, a Business Owners Policy is an excellent tool if your home-based business operates in more than one location. A BOP covers business property and equipment, loss of income, extra expense, and liability. These coverage plans are offered on a much broader scale than the in-home business policy.

OSHA to Rule in November Who Pays for PPE

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This November, OSHA will finally end the controversy surrounding the matter of who pays for an employee’s personal protective equipment when it issues a final ruling on the subject. Labor unions have been waiting for almost eight years for the agency to complete its rulemaking, which would clarify that employers are supposed to pay for safety equipment.

The controversy began in 1994 when the agency tried to establish a policy and clarify the issue of payment in a memo to its field staff dated October 18th and titled Employer Obligation to Pay for Personal Protective Equipment. In this memo, OSHA stated that for all PPE standards, the employer must provide and pay for employees’ required PPE except for those items that are personal in nature or used by the employee off the job. In these instances the issue of payment was left to labor-management negotiations.

OSHA’s position in the 1994 memo was in response to pending litigation between the Secretary of Labor and Union Tank Car Company. In that case, the employer was issued a citation for not paying for metatarsal foot protection and welding gloves. The Occupational Safety and Health Review Commission (OSHRC) reviewed the case and declined to accept OSHA’s interpretation given in the memorandum. It dropped the citation and found that the Secretary had failed to adequately explain the policy outlined in the 1994 memorandum.

In response to OSHRC’s Union Tank Car decision, OSHA issued the proposed rule, 29 CFR 1910.132, which established that employers pay for all types of PPE as required under OSHA standards except for safety shoes, prescription safety eyewear and logging boots. The proposed rule was predicated on OSHA’s conclusion that the OSH Act implicitly required employers to pay for PPE that is necessary for employees to perform their jobs safely.

In 1997, OSHRC declined to accept OSHA’s interpretation that in the majority of circumstances, employers must pay for employees’ PPE as required under Section 1910.132. OSHA’s response was to start rulemaking proceedings to clarify the party required to pay for PPE in all situations where an OSHA standard requires its use. On March 31, 1999, the agency issued a proposed rule to require employers to pay for all PPE except in a few specific cases. After OSHA received public comments and held hearings, the record was closed on December 13, 1999.

In 2004, the agency re-opened the record because there was a need to evaluate the proposal further, and requested more input from the public. OSHA wanted public comment to address the issue of how to handle certain types of PPE that are usually supplied by the employee, taken from site to site or from employer to employer, and considered to be “tools of the trade,” especially in industries with high turnover.

In January 2007, The AFL-CIO and the United Food and Commercial Workers (UFCW) filed suit against the Department of Labor over its failure to issue a standard requiring employers to pay for PPE.  They asserted that this failure was endangering workers’ lives.

The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, petitioned the court to issue an order directing the Secretary of Labor to finalize the PPE rule within 60 days of the court’s order.

On February 16, 2007, The U.S. Court of Appeals for the District of Columbia Circuit ordered the Department of Labor to respond to the unions’ lawsuit by March 19th. However, several days before that deadline, legal counsel for the Secretary of Labor, Elaine Chao, filed papers with the appeals court asking it to hold the case “in abeyance” until the final rule is issued in November.

Take Steps to Prevent Workplace Bias Claims Before They Happen

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The Equal Employment Opportunity Commission recently reported that work-related bias complaints increased to 75,768 during 2006 compared with 75,428 the previous year. Discrimination complaints had previously risen to a seven-year high of 84,442 in 2002, but then steadily decreased from 2003 to 2005. The most frequent complaints have remained consistent throughout the years, including allegations of discrimination based on race, sex or retaliation.

This upward trend in the number of suits filed should raise alarms for employers everywhere. The legal cost to defend an allegation of discrimination that reaches trial has been estimated between $75,000 and $200,000. This doesn’t include hidden costs like work time lost because of gathering evidence or giving depositions. It also doesn’t include costs associated with an appeal or with payment of a final judgment.

The National Center for Preventive Law (NCPL) at the California Western School of Law in San Diego recommends that employers practice what it refers to as “preventive law.” That means assessing legal risks and instituting solutions to prevent them from occurring.

To assist employers in creating an effective prevention program, NCPL has established the following guidelines:

·            Manage Compliance – Develop a corporate policy regarding discrimination and document in the employee handbook. Document the specific ways in which corporate policy enforces compliance. Maintain a record keeping system that indicates what actions were taken if policies were violated.

·            Contain Risk – Identify overt employee conduct that could lead to a lawsuit. Also look for less obvious misconduct that encourages or promotes discrimination.

·            Respond to Change – Maintain the longevity and continuity of your policies by including mechanisms that allow for necessary updates caused by new business activities or other organizational developments.

·            State Compliance Policy – Take every opportunity to restate corporate compliance policies, including such practices as having department managers discuss them during departmental meetings or by distributing fliers that remind employees about these policies.

·            Top Level Endorsement – Provide continuing opportunities for senior management to oversee and promote corporate compliance policies.

·            Create Compliance Accountability – Hold all staff members accountable for compliance in every activity they initiate or oversee.

·            Ensure Program Fairness – Be sure practices treat all employees fairly and guard against retaliation for raising compliance issues.

·            Maintain High-Level Oversight – Establish a Compliance Officer who has the authority to initiate, coordinate and review corporate compliance efforts.

·            Reward Success – Promote continued compliance through rewards such as monetary compensation.