OSHA Seeks Comments on Proposed Combustible Dust Rule

The Occupational Safety and Health Administration (“OSHA”) indicates that it wishes to develop a standard designed to prevent combustible dust fires and explosions in general industry and is seeking comments. Currently, OSHA does not have a single, comprehensive standard that addresses combustible dust hazards across all industries. With respect to comments sought, OSHA seeks input from employers on several issues, such as:

  1. the extent of combustible dust hazards,
  2. the definition of “combustible dust,” 
  3. awareness of the hazards of combustible dust, and 
  4. hazard assessments, communications, and training.
Employers in industries where combustible dust and resulting hazards are an issue should take the time to provide their comments to the agency, which OSHA will utilize to develop the standard. Comments are due Jan. 19, 2010, and may be submitted in several ways:
  1. online at http://www.regulations.gov/
  2. fax to the OSHA Docket Office at (202) 693-1648; or 
  3. mail to the OSHA Docket Office
    Docket No. OSHA-2009-0023 (or Regulation Identifier Number (RIN) 1218-AC41)
    Technical Data Center, Room N-2625
    U.S. Department of Labor
    200 Constitution Avenue, N.W.
    Washington, DC 20210
Please note that all submissions must include the Agency name and the OSHA docket number or RIN for this rulemaking (i.e., OSHA Docket No. OSHA-2009-0023 or RIN 1218-AC41).

Author: Karen Adinolfi


Workers' Comp Case Weighs In Heavy in Indiana

Workers’ compensation can be a very state-specific part of the law since it is generally a state-run system, which means we typically only hear about cases that take place within our own state. Every so often, however, a case from another jurisdiction is interesting enough that we do hear about it. The most recent workers’ compensation case to make national headlines was PS2 LLC v. Childers, 910 N.E.2d 809 (Ind. App. 2009) from the State of Indiana.

Adam Childers was 25 years-old and worked as a cook at a Boston’s Gourmet Pizza in March 2007 when he sustained an injury to his back when he struck a freezer door. Prior to the accident, Childers weighed 340 pounds. As a result of the injury, Childers’ doctors said he needed surgery to ease his severe pain, but the operation would do him no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident.

The employer, Boston's Gourmet Pizza, argued it should not have to pay for the weight loss surgery because Childers' weight was a pre-existing condition. The Indiana Workers' Compensation Board and the Court of Appeals of Indiana, however, ruled the company had to pay for the surgery because Childers’ weight and the accident created a single and continuous injury.

While we have seen employers ordered to pay for certain pre-surgery treatments, none have made headlines the way Mr. Childers’ weight-loss surgery did. Despite the many articles either in support or opposition to the position taken by the Indiana court, the Childers case is a good reminder that employers take their employees as they find them, and sometimes even an innocuous injury can lead to long-term, unanticipated costs.


Sixth Circuit Finds Evidence of Pretext for Discrimination

On September 23, 2009, the Sixth Circuit Court of Appeals issued its decision in Risch v. Royal Oak Police Department, Sixth Cir. Case No. 08-1883, reversing an award of summary judgment to the employer.

Karyn Risch is a female police officer who worked for the Royal Oak Police Department for 17 years. On several occasions, Ms. Risch applied for promotion, but was passed over in favor of male candidates. Royal Oak used a weighted scale to evaluate candidates for promotion, assigning values for written examinations, performance reviews, and seniority. From 2002 to 2004, Ms. Risch placed second or third on the promotion list. In 2005, Ms. Risch was ranked third, but males scoring second, fourth and fifth were promoted instead. The police chief indicated by affidavit that he did not promote Ms. Risch because the males who were promoted had better test scores, better performance evaluations, and demonstrated more initiative and leadership qualities.

Ms. Risch filed a charge of sex discrimination with the Equal Employment Opportunity Commission in October of 2005 and subsequently a lawsuit under Title VII in the U.S. District for the Eastern District of Michigan. The district court granted the employer’s motion for summary judgment and Ms. Risch appealed to the Sixth Circuit Court of Appeals.

Royal Oak conceded that Ms. Risch was able to establish a prima facie case of sex discrimination under Title VII. Ms. Risch in turn conceded that her employer had articulated a legitimate, nondiscriminatory reason for not promoting her. The sole issue before the Sixth Circuit was whether Ms. Risch had produced sufficient evidence to raise a genuine issue of material fact as to whether Royal Oak’s explanation was a pretext for discrimination. The majority held that evidence that Ms. Risch was more qualified than the successful applicants can in some circumstances be sufficient to raise a genuine issue of material fact that the employer’s proffered reason is pretextual.

In reviewing the evidence, the majority found that those circumstances may exist and a question had been raised for the jury. It held that Ms. Risch had demonstrated a genuine issue of material fact as to pretext, emphasizing that Ms. Risch had “arguably superior qualifications” when seniority was considered. The majority also found evidence of discriminatory remarks made by several male officers who were not decision makers to be relevant.

What can employers take from this decision? Reliance on objective, documented factors in considering candidates for hire or promotion is the best avenue. Reliance on such “soft” factors as initiative, leadership qualities, and ability to work with others can be problematic. Those factors are often subject to the bias of the decision maker, which may or may not turn out to be a discriminatory bias. While such factors may be important to an employer, it is crucial to remember that you must be able to document and provide concrete examples of such criteria should you wish to rely on them.

Author: Ryan Bonina


U.S. House Approves Bill Extending Unemployment Benefits in States with High Unemployment Rates

On September 22, 2009, the U.S. House of Representatives approved H.R. 3548, which will provide an additional 13 weeks of emergency unemployment compensation program benefits in states with a three-month average total unemployment rate of at least 8.5%. Ohio, with an average rate of 10.8%, is one of the states that will receive additional funds under this bill.

This bill will assist workers who would exhaust their benefits this month if no extension was approved, and the number of such workers is expected to increase to more than one million by the end of 2009. The bill’s costs are not expected to add to the national deficit, as any costs will be offset by two provisions:

1) the bill extends for one year a federal unemployment tax already in place, the Federal Unemployment Tax Act surtax, which imposes a $14 per worker annual tax on business, and which was scheduled to expire at the end of 2009; and

2) the bill requires that current reporting on newly hired employees must now include the date work started, in order to reduce overpayments.

The Senate now takes up the bill.