The landscape of employment laws evolves quickly, and entrepreneurs and small business owners are often left scrambling to understand new rules and implement new procedures. To reduce the stress, read these legal updates on seven employment law “hot buttons” that should be on the radar screen of every small business: 

Littler's Tammy McCutchen Examines Department of Labor FLSA Enforcement Issues at Congressional Hearing.

High-hazard, non-construction employers with 20 or more employees will be subject to inspections under the Occupational Safety and Health’s 2011 Site-Specific Targeting (SST) programmed inspection plan. (pdf)? Last year’s SST applied to employers with at least 40 employees. The purpose of the SST is to enable OSHA to focus its inspection resources on workplaces that experience the highest injury and illness rates, as identified by data compiled in the 2010 OSHA Data Initiative (ODI)survey of approximately 80,000 establishments in selected high-hazard industries. According to OSHA, the worksites are randomly selected for inspection from a primary list of 3,700 manufacturing, non-manufacturing, and nursing and personal care facilities. Another change from last year’s program is the incorporation of a study to measure the program's impact on injury and illness rates and future compliance with OSHA standards.

Generally, the SST “defines key terms, describes the three inspection lists, provides scheduling and inspection procedures, and gives information on OSHA coding.” In addition, the report includes three appendices that provide information on the industry groups included in the 2010 ODI, includes a checklist for compliance safety and health officers (CSHOs), and instructs Area Offices on how to use the Inspection Targeting website. The targeted employers are culled from various manufacturing, non-manufacturing, and nursing and personal care facilities.

As was the case under last year’s SST, if a CSHO?discovers that an establishment slated for inspection is a Voluntary Protection Programs (VPP) site, he or she must exit the site without conducting an inspection, and the establishment must be deleted from the inspection list. Similarly, if the establishment takes part in OSHA’s Consultation Safety and Health Achievement Recognition Program (SHARP), then the inspection officer must leave the site without conducting an inspection. If the establishment’s application to either of these programs is pending, then the inspection will be deferred.

In addition to the SST program, OSHA operates a number of national and local emphasis inspection programs aimed at specific high-risk hazards and industries.

In a press release, OSHA’s Assistant Secretary of Labor David Michaels said: “By focusing our inspection resources on employers in high hazard industries who endanger their employees, we can prevent injuries and illnesses and save lives,” adding: “Through the SST program we examine all major aspects of these operations to determine the effectiveness of their safety and health efforts.”

by Ilyse Schuman

The Occupational Safety and Health Administration has issued a new a compliance directive: Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The purpose of the directive is to establish uniform procedures for OSHA field officers when responding to incidents and complaints of workplace violence. The directive also provides guidelines for conducting inspections in industries the agency deems particularly vulnerable to workplace violence, including healthcare, social service settings and late-night retail establishments. Specifically, the directive “highlights the steps that should be taken in reviewing incidents of workplace violence when considering whether to initiate an inspection in industries that OSHA has identified as susceptible to this hazard.” In conjunction with the directive, OSHA has launched a web pageto assist employers in preventing incidents of workplace violence.

The directive explicitly states that it does not require an OSHA response to every complaint or fatality related to workplace violence “or require that citations or notices be issued for every incident inspected or investigated. Instead, it provides general enforcement guidance to be applied in determining whether to make an initial response and/or cite an employer.” Employers that fail to reduce or eliminate “serious recognized hazards” which may include workplace violence may be found in violation of the general duty clause. To that end, OSHA directs field inspectors to “gather evidence to demonstrate whether an employer recognized, either individually or through its industry, the existence of a potential workplace violence hazard affecting his or her employees.” The directive also encourages OSHA investigators to “focus on the availability to employers of feasible means of preventing or minimizing such hazards.”

In workplaces where a potential for violence against employees has been identified, the directive states that employers should be encouraged to develop and implement a workplace violence prevention program. Although OSHA Compliance Safety and Health Officers should discuss with the employer potential controls for these types of hazards, the directive provides that it is the employer’s responsibility to employ the most effective feasible controls available to protect its employees from acts of workplace violence. The selection of abatement methods should be based on specific hazards identified in a workplace analysis of the facility/place of employment, temporary duty locations and workers’ travel routes while on duty.

Among other documents contained in the directive’s appendix is a list of potential abatement methods for employers in all industries and those with primarily administrative workplaces. The appendix also sets forth more specific recommendations for those employers in the retail industry and those with healthcare and social services facilities. OSHA has previously published guidance documents on workplace violence aimed at late-night retail establishments?(pdf) and healthcare and social services industries. (pdf)

by Ilyse Schuman