BREAKING: Cal/OSHA Overhauls Reporting Requirements for Serious Injuries

By Andrew Sommer and Megan Shaked

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b)in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always leads to a site inspection by Cal/OSHA, which in turn most often results in Serious or Serious Accident-Related citations.

Cal/OSHA’s prior, longstanding reporting rule defined “serious injury or illness” as any injury or illness occurring in a place of employment or in connection with any employment that requires in-patient hospitalization for a period in excess of 24 hours for treatment other than medical observation, or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.  The old definition excluded injuries or deaths caused by the commission of a Penal Code violation (e.g., an intentional assault and battery), or an auto accident on a public street or highway.

On August 30, 2019, California passed Assembly Bill (AB) 1805 to revise the definition of a “serious injury or illness” for reporting purposes. The changes appear to be designed to bring Cal/OSHA’s reporting requirement more (but not entirely) in line with fed OSHA’s hospitalization and amputation reporting rule.  Specifically, Cal/OSHA’s new reporting requirements: Read More

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that Read More

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Read More

Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as reinstatement, back pay, front pay, compensatory damages, and punitive damages if the employee can show “evil motive or callous indifference” on the part of the employer.

Understanding the elements of the employee’s case, and how to defend against them, therefore, is essential.  Prior to 2016, the employee had to establish a prima facie case of retaliation in order to maintain a claim and proceed through an OSHA investigation.  Now, however, OSHA guidance in its Whistleblower Manual states that an employee need only prove its claim has merit.  As such, the bar for employees is much lower, and a complaint can go forward even if there is only reasonable cause to believe a violation occurred.

Nonetheless, the elements of a whistleblower claim under Section 11(c) are similar to the elements under other types of retaliation claims.  The employee must prove that:

  1. s/he engaged in protected activity;
  2. the employer took some adverse action; and
  3. there was a causal connection between the protected activity and adverse action.
  4. Additionally, and unlike other types of retaliation claims, the employee must also prove knowledge; i.e., that the decisionmaker knew of the protected activity at the time of taking the adverse action.

If the employee can show the required elements, the employer then has the opportunity to counter them by demonstrating it had a legitimate, non-discriminatory reason for the adverse action.  The reason may be insubordination or poor performance, among a host of other reasons.

It is important for employers to understand the elements an employee must establish and its own potential defenses because these are the topics an employer should address in its position statement to OSHA.  Essentially, this is the employer’s first and best chance to submit a persuasive written response to the allegations in the complaint, so drafting this statement is the opportune time to seek assistance from experienced legal counsel.

Here are some of our best practice tips:

  • Investigate the complaint promptly and document your findings.
      • Determine if the complaint was timely
      • Collect relevant documents to support your position
      • Interview employees with any knowledge of the claim, etc.
  • Draft an effective position statement.
      • The position statement should give context to the employee’s allegations from the employer’s perspective, and should be told in a way that is easy for the OSHA investor to follow.
      • We recommend splitting the position statement into two parts: (i) factual background; and (ii) legal analysis.
      • We also recommend providing supporting documentation, but caution that the documentation should not disclose potentially adverse or confidential information.
  • To avoid any potential for additional claims of retaliation, immediately after receiving notification of the complaint from OSHA, take steps to ensure no retaliatory actions are taken against the complaining employee; e.g., reminding managers that they should not take any action that could be perceived as retaliatory.

Health and Safety Complaints

Under Section 8(f)(1) of the OSH Act, every employee is given the right to complain to OSHA and ask for an inspection when s/he believes there has been a violation of a health and safety standard.  OSHA, however, simply does not have the resources to conduct an inspection for each and every complaint it receives.  Accordingly, it must decide whether the complaint merits an on-site inspection, or whether the agency will send out a Notice of Alleged Hazard(s) (also known as a “Phone and Fax Complaint”) to the employer.

OSHA has a list of priority complaints that typically result in an on-site inspection.  These include:

  • written, signed complaints by current employees that have enough detail to enable OSHA to determine that a violation or hazard likely exists that threatens physical harm;
  • complaints that allege that a physical harm has occurred as a result of the hazard and that it still exists; and
  • reports of imminent danger.

If OSHA does initiate an on-site inspection, we recommend you check out Conn Maciel Carey’s OSHA Inspection Toolkit and contact experienced OSHA defense counsel for assistance.

Where OSHA decides not to conduct an inspection, it will still send out a Notice of Alleged Hazard(s) to solicit additional information from the employer related to the complaint.  This notice will convey the specific safety and/or health complaint that OSHA received, and will request that the employer investigate and respond — either to rebut the truth of the allegation or to describe the corrective actions the employer has taken.  An inadequate response to that Notice can trigger an on-site inspection, and can be used against the employer in that inspection and potential enforcement process.

Accordingly, it is important to provide an effective and careful response.  Here are some of our best practice tips for responding to Notices of Alleged Hazard(s):

  • Conduct a prompt and thorough investigation.
  • Make sure to document the investigation process, scope, and findings in your response to OSHA.
  • Remember, this is not a subpoena response, so selectively share your information that presents an honest response, but one that casts your safety program in the best possible light.
  • Demonstrate and document the absence of the alleged hazard, if the complaint is without merit.
  • If the investigation identifies opportunities for improvement or the need for corrective action, immediately implement or plan the corrective actions and improvements, and inform OSHA of the corrective actions and improvements without admitting to regulatory deficiencies.
  • Do not “blame” employees.
  • Ask OSHA for a closeout report, and keep it in your file, along with your response and the original Notice.

Severe Injury Reports

In 2015, OSHA’s new injury and fatality reporting rule became effective, significantly revising the triggering events for reporting workplace accidents to OSHA under the Agency’s Injury and Illness Recordkeeping regulations at 29 C.F.R. 1910.104, et seq.  The new Severe Injury Reporting Rule lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee, and added amputations (including partial amputations) and losses of an eye to the types of injuries that employers must proactively report.  By lowering the threshold from three employees hospitalized to a single employee has dramatically increased the number of incidents that are not reported to OSHA, from at most 50 a year to tens of thousands today.

Because OSHA has been flooded by reports of worker injuries, it became impossible for the agency to respond to each, or even a meaningful percentage of reports, with an on-site enforcement inspections.  Accordingly, OSHA issued “Enforcement Procedures for [OSHA’s] New Reporting Requirements,” which advises its field offices when to conduct on-site inspections, or conversely, when to not inspect, and instead to utilize its new “Rapid Response Investigation” (RRI) protocol.

According to its Enforcement Procedures, OSHA categorizes injury reports into one of three buckets to help make its decision.  Category 1 reports are supposed to always result in an onsite inspection.  These include:

  1. incidents resulting in a fatality;
  2. hospitalizations of 2+ employees;
  3. injuries to youth employees;
  4. incidents involving an employer with a known history of injuries, past Repeat or Willful violations, or an SVEP employer; and
  5. incidents related to an active National or Local enforcement emphasis program

Category 2 reports may result in an on-site inspection or RRI, based on the discretion of the OSHA Area Director after s/he evaluates a variety of factors, including whether:

  1. employee was exposed to a very serious hazard;
  2. hazardous conditions have already been corrected;
  3. the incident resulted from a systemic failure;
  4. temporary workers were involved;
  5. another governmental agency made a referral; or
  6. the incident involved chemical exposures, heat stress, or other health (vs. safety) issues.

Category 3 — everything else — always result in RRIs.Reporting 2.JPG

The RRI letter is an investigative tool that OSHA uses to help OSHA understand the root cause of the incident and what the employer has done to correct it.  Under the RRI program, the employer will receive an RRI request letter, which directs the employer to conduct an accident investigation, document the findings and corrective actions, post a copy of this letter where employees can review it, and submit the findings and corrective actions to OSHA.

Importantly, if you do not respond, then OSHA will open an on-site inspection.  Likewise, if OSHA finds your response inadequate, it will also open an on-site inspection.  Accordingly, it is critical to respond to these requests and to do so carefully; i.e., provide enough and the right information to dissuage OSHA from opening an inspectiong, but not to make admissions that can be used against you in an inspection or enforcement proceeding.

Here are some of our suggestions for how best to respond to an RRI request:

  • Conduct a thorough investigation. Review applicable documents, talk to injured workers and witnesses, etc.
  • Be strategic about what and how information is provided in your response.  Be careful not to document an admission.
  • For an RRI letter, use OSHA’s “non-mandatory” investigation form, which makes it easier for OSHA to “check the box” that all information it needs to close the file has been provided.
  • Do not list “employee misconduct” as the first or sole cause of an injury, if at all possible, but include it, if applicable, to preserve that defense.
  • Include at least one corrective action in your response.  Whether this is a correction or improvement, it shows the agency that you are taking the issue seriously.

For much more information about all of this, check out Conn Maciel Carey’s April 2019 webinar: “Guide to Responding to 11(c) Safety Retaliation Complaints and Notices of Alleged Hazards / Employee Safety Complaints.” thumbnail-1 Participants in that webinar learned about the following:​

  • The types of complaints and incidents that lead OSHA to request information from the employer;
  • Specific prohibitions of Section 11(c) (OSHA’s anti-retaliation law) and how retaliation complaints are evaluated;
  • Strategies employers can use to effectively respond to Section 11(c) complaints, Notices of Alleged Hazards, and RRI requests; and
  • Proactive measures employers can take to avoid employee complaints.

Here are links to a copy of the slides and a recording of the webinar.  Let us know if you have questions about responding to OSHA whistleblower actions or employee safety complaints, or any any other OSH law issues.  We would love to be a resource for you.

The April webinar was the 4th event in Conn Maciel Carey’s 2019 OSHA Webinar Series.  Click here to view our full schedule, program descriptions, and registration pages for the remaining webinars in the 2019 OSHA Webinar Series.  To register for all of the remaining programs in the 2019 seriesclick here to send an email request, and we will get you automatically registered.

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link Conn Maciel Carey’s webinar archive.

Key Cal/OSHA Issues California Employers Must Track [Webinar Recording]

On May 28, 2019, Andrew J. SommerEric J. Conn and Megan S. Shaked  of Conn Maciel Carey LLP‘s national OSHA Practice presented a webinar regarding: “Key Cal/OSHA Issues California Employers Must Track.”

The state of California’s Division of Occupational Safety and Health, better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation.  California employers face a host of requirements that other employers around the country do not.  Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.

Of particular significance in the coming year, California employers should be on the lookout for a new permanent E-Recordkeeping injury data submission rule, a new focus on finding Repeat violations, and the roll-out of several new California-unique rules.

Participants in this webinar learned about:​

  • Trends in Cal/OSHA Enforcement
  • New E-Recordkeeping electronic injury data submission requirements
  • Cal/OSHA’s new Repeat Violation Rule
  • Cal/OSHA’s Expanded Statute of Limitations for Recordkeeping Violations
  • Proposed Rules for Indoor Heat Illness Prevention, Workplace Violence in General Industry, and Protection from Wildfire Smoke

We are pleased to share these links to a copy of the slides and a recording of the webinar.  Let us know if you have questions about Cal/OSHA enforcement or compliance issues, or any other OSH law issues.  We would love to be a resource for you.

The May 28th webinar was the 5th webinar event in Conn Maciel Carey’s 2019 OSHA Webinar Series.  Click here to view our full schedule, detailed program descriptions, and individual registration pages for the remaining webinars in the 2019 OSHA Webinar Series.  To register for all of the remaining programs in the 2019 series, click here to send an email request, and we will get you automatically registered.

If you missed any of our past webinars in our annual OSHA Webinar Series, here is a link Conn Maciel Carey’s webinar archive.

2019 Update on OSHA’s E-Recordkeeping and Significant Injury Reporting Rules [Webinar Recording]

On February 12, 2019 Lindsay DiSalvo and Dan Deacon from Conn Maciel Carey LLP’s national OSHA Practice presented a webinar regarding: “Updates About OSHA’s E-Recordkeeping and Significant Injury Reporting Rules.

OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.

Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015.  Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA.  In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.

During this webinar, participants learned: Read More

Top 5 OSHA Issues to Track in 2019 and OSHA’s 2018 in Review [Webinar Recording]

On January 15, 2019, the Partners in Conn Maciel Carey’s national OSHA Practice presented a webinar on “The Top 5 OSHA Issues to Track in 2019, and OSHA’s 2018 In Review.” 

The ball has dropped, the confetti has been swept out of Times Square, and 2018 is in the books.  It’s time to look back and take stock of what we learned from and about OSHA over the past year.  More importantly, it is time to look ahead to what we can expect from OSHA as we transition to the out years of President Trump’s first term.  This webinar reviewed OSHA enforcement, rulemaking, and other developments from 2018, and discussed the Top 5 OSHA Issues employers should monitor and prepare for in the New Year.

During this webinar, participants learned: Read More

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

By Andrew SommerMegan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including: Read More

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

By Andrew SommerMegan Shaked, and Dan Deacon

As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).

When federal OSHA promulgated the Rule in 2016, E-Recordkeeping Ruleit built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication.  Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration.  As a result, numerous State OSH programs failed to initially adopt the rule.  After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.

Delinquent State Plans Began Adopting E-Recordkeeping

In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon.  While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:

  • California (Cal/OSHA);
  • Washington (WA DLI, WISHA, or DOSH);
  • Maryland (MOSH);
  • Minnesota (MNOSHA);
  • South Carolina (SC OSHA);
  • Utah (UOSH);
  • Wyoming (Wy OSHA); and
  • Vermont (VOSHA)

Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction.  Specifically, on April 30, 2018, federal OSHA issued Read More

Announcing Conn Maciel Carey’s 2019 OSHA Webinar Series

We are now two years into the Trump Administration, and we have seen a mixed bag of changes in the OSHA enforcement and regulatory landscape. We have watched some late Obama-era OSHA rules get repealed by the Congressional Review Act or delayed and amended through deregulatory rulemaking.  We have seen some efforts to boost up the VPP Program and other cooperative programs—the sorts of policy shifts at OSHA many expect in a transition to a republican administration. However, we have also been surprised by OSHA increasing the number of inspections, setting records for the number of $100K+ enforcement actions, and continuing to issue hard hitting press releases.  And most surprising of all, OSHA still does not have a Senate-approved Assistant Secretary—the longest ever wait for a permanent OSHA Administrator.

As we move into the out years of Pres. Trump’s first term, we expect more reshuffling of OSHA’s enforcement priorities and policies, and more surprises, so it is critical to stay abreast of OSHA developments. This complimentary 2019 OSHA Webinar Series, presented by the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this unpredictable time.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2019 Series, click here to send an email request, and we will get you registered. If you missed any of our OSHA programs, here is a link to our webinar archive.


2019 OSHA Webinar Series – Program Schedule
OSHA Year in Review & 2019 Forecast

Tuesday, January 15th

Tips to Survive an OSHA Inspection

Tuesday, July 23rd

Updates on OSHA’s E-Recordkeeping and Serious Injury Reporting Rules

Tuesday, February 12th

Joint- and Multi-Employers, Contractors and Temps

Tuesday, August 13th

OSHA’s New Site-Specific
Targeting Enforcement Program

Tuesday, March 19th

OSHA’s Electrical Safety Standards – Top 5 Risks and Mistakes

Tuesday, September 24th

Responding to 11(c) Retaliation Claims & Employee Safety Complaints

Tuesday, April 16th

What You Need to Know About OSHA’s Health Exposure Standards

Tuesday, October 22nd

New Cal/OSHA Enforcement Issues

Tuesday, May 28th

 OSHA PSM and EPA RMP Update

Tuesday, November 19th

The Fate of Numerous Midnight Obama-Era OSHA Rules

Tuesday, June 18th

Workplace Violence & Harassment – OSHA & Employment Law Issues

Tuesday, December 17th

See below for descriptions of the webinars and registration links

Read More

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