Archive for January, 2015

Top 10 Workplace Injuries Can Guide Your Safety Program

The five leading causes of workplace injuries accounted for about 65% of workers’ compensation costs in 2012, according to new research by Liberty Mutual Group Inc.

The results, published in the Liberty Mutual Research Institute for Safety’s “2014 Workplace Safety Index,” found that overexertion – or injuries related to lifting, pushing, pulling, holding, carrying or throwing – was the top cause of workplace injury in 2012. Overexertion injury claims cost U.S. employers $15.1 billion that year, or 25% of all workplace injury costs, according to the study.

This index is a good tool for employers as it helps businesses understand the nature of the majority of workplace injuries. With this information in hand, you can put in place safeguards in your workplace to reduce the likelihood of injuries.

 

10 Leading Causes and Direct Costs of Workplace Injuries in 2012

1. Overexertion: Total cost nationwide: $15.1 billion (25.3% of all workplace injury costs).

2. Falls on same level: Total cost nationwide: $9.2 billion (15.4% of the total).

3. Struck by object or equipment: Total cost nationwide: $5.3 billion (9%).

4. Falls to lower level: Total cost nationwide: $5 billion (8.6%).

5. Other exertions or bodily reactions: Total cost nationwide: $4.3 billion (7.2%).

6. Roadway incidents involving motorized land vehicle: Total cost nationwide: $3.2 billion (5.3%).

7. Slip or trip without fall: Total cost nationwide: $2.2 billion (3.6%).

8. Caught in/compressed by equipment or objects: Total cost nationwide: $2.1 billion (3.5%).

9. Repetitive motions involving micro-tasks: Total cost nationwide: $1.8 billion (3%).

10. Struck against object or equipment: Total cost nationwide: $1.76 billion (2.9%).

We can work with you to help you mitigate these and other risks of injury in workplaces of all sizes.

The following are ways to reduce the likelihood of the top three injury types on this list.

 

Overexertion

To reduce overexertion injuries, you need to understand the risks associated with manual handling tasks, including lifting, lowering, pushing, pulling and carrying.

When your workers will handle materials, we recommend:

•           Having a handling plan that avoids slippery hazards and includes a destination.

•           Testing the load to ensure that it can be safely carried.

•           Knowing the limits! If the load is too heavy, awkward or bulky to carry alone, the worker should get help.

•           Using machinery or equipment, such as pushcarts, hand truck, wheelbarrow, forklift or hoist.

•           When possible, using levers, incline planes or rollers to move loads.

 

Guidelines for safe lifting:

•           Get a good grip. Grasp the load firmly. Use gloves if they allow for a better grip.

•           Get a good footing. Center body weight to provide a powerful line of thrust and good balance.

•           Keep it close. Grasp the load firmly and lift towards the belt buckle. Hold the load close to the body to avoid putting pressure on the back.

•           Lift smoothly. Raise, carry and lower the load smoothly. Never jerk a load.

•           Avoid twisting. If turning is required while lifting or carrying a load, turn the feet and body instead of twisting the back.

•           Push. Push rather than pull the load.

 

Falls

To avoid the likelihood of slips, trips and falls, the second-most costly injury type:

1)         Maintain a workplace free of clutter and assign staff to make sure the work area is tidy.

2)         Reduce wet or slippery surfaces.

3)         Avoid creating obstacles in aisles and walkways.

4)         Ensure that you have proper lighting in all areas.

5)         Make sure workers have the proper shoes.

 

Struck by objects

A few of the simpler ways to reduce struck-by injuries are:

•           Wear hardhats to avoid being injured by falling objects.

•           Stack materials properly to prevent sliding, falling or collapse.

•           Always wear proper PPE. This includes safety glasses, goggles and face shields, to name a few.

•           Don’t work under cranes, hoists or heavy machinery while it’s being operated.

•           To avoid struck-by incidents with vehicles, workers should wear seat belts, check vehicles thoroughly and wear highly visible clothing.

lifting safely lek

Exchanges Send Employers Coverage Notification Letters

By now you should be aware of the various penalties that can be levied against employers for not providing health insurance to their full-time employees once the employer mandate takes full effect.

But are you aware of another liability contained in the Affordable Care Act – the whistleblower complaint?

The ACA prohibits an employer from discharging or in any manner discriminating or taking retaliatory action against any employee because the employee or an individual acting at the request of the employee has:

  1. Received a credit or a subsidy for purchasing health insurance coverage on a public exchange;
  2. Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the federal government or the state attorney general, information regarding a violation of Title I of the ACA;
  3. Testified or is about to testify in a proceeding concerning an ACA violation. Or if they assisted or participated, or are about to assist or participate, in such a proceeding.
  4. Objected to, or refused to participate in, any activity, policy, practice or assigned task that the employee reasonably believes was in violation of any provision of the ACA.

The task of investigating whistleblower complaints is the responsibility of the federal Occupational Safety and Health Administration. Employees that feel they’ve been wronged in terms of the ACA have 180 days to file an administrative complaint with the OSHA Whistleblower Directorate.

So far there have been no Department of Labor (DOL) administrative tribunals for an ACA whistleblower complaint. That’s not surprising since the employer mandate has partly taken effect only this year for employers with 100 or more full-time or full-time equivalent employees.

While there have been no tribunals, the OSHA has received one complaint that was thrown out. Nonetheless, the complaint could be a reflection of what a complaint might look like in the future, after the employer mandate is fully implemented.

 

The case:

A woman employed as a “durational employee” by the Housing Authority of Columbus, Georgia, filed an ACA whistleblower complaint in August 2014.

She alleged that she was terminated in January 2014 – four months after she’d refused to sign and acknowledge that she understood “and agreed” with the terms of the company’s policy on health coverage for employees.

Those were laid out in a letter she’d received in September 2013, which stated that durational employees were ineligible for participation in the employer’s group health insurance plan and that only regular, full-time employees were eligible.

She said that after she had refused to sign, she received her first unsatisfactory performance evaluation and a significantly lower annual bonus based on the unsatisfactory review.

She alleged that adverse employment actions were the result of her refusal to accept the terms.

OSHA dismissed the complaint, on the grounds that it was filed to late – more than 180 days following the date of termination.

The woman appealed the decision to the DOL Office of Administrative Law, claiming that her complaint was timely because she had attempted, unsuccessfully, to file timely complaints within the 180-day limitations with other federal agencies, as well as with the White House.

But the administrative law judge threw out the complaint, saying the employer could not be held liable for retaliation prior to the effective date of the employer mandate.

 

The takeaway:

The case illustrates the most likely scenario under which an employee may gain ACA whistleblower protection after this year.

Other whistleblower complaints likely to surface in 2016 would concern complaints of adverse employment actions taken after an employer receives notice that one or more of its employees qualified for a tax credit or a subsidy for purchasing health benefits through a public exchange.

However, all complaints must be filed within 180 days of an adverse employment action.

whistleblowers

EEOC Increases Scrutiny of Harassment Claims

The Equal Employment Opportunity Commission is likely to redouble its policing of workplace harassment, agency heads announced at a recent meeting in January to lay out the EEOC’s 2015 agenda.

According to EEOC chairwoman Jenny Yang, “We are developing strategies that focus on targeted outreach and education as well as systemic enforcement to promote broader voluntary compliance.”

That means that employers can expect mounting scrutiny in this area if an employee files a complaint with the agency.

The EEOC supported its interest in harassment because more than 30% of all charges it makes include harassment allegations. In 2014, 6,862 charges alleged sexual harassment, while 4,848 disability discrimination charges and 9,023 racial discrimination charges included some allegation of harassment.

During the EEOC’s meeting, the following recommendations for the employer community were aired:

 

Focus on training – The EEOC recommends and expects employers to provide harassment prevention training to employees. You can impress the agency if you can show that you are providing such training. Key elements of training include:

  • Effective, mandatory and company-wide presentations and workshops offered throughout the year;
  • Specific training for supervisors and managers (separate from non-managers as responsibilities vary depending on position); and
  • Diligent record-keeping of attendance.

 

Sound prevention policy – Prevention starts with a sound anti-harassment policy. Your policy should include detailed instruction on how to report a complaint and identify with whom you can file the complaint in your organization.

The EEOC also recommends that you issue statements that complaints will be investigated promptly and the company will not retaliate against anyone for lodging a complaint. Likewise, you should include a statement that you retain the right to discipline or fire employees who knowingly raise false complaints.

 

 Communication  – Make sure that you properly communicate your policy, that it reaches everyone in your organization, and that they understand the importance of the policy. Post it electronically if possible, and on bulletin boards in areas frequented by your staff.

Also, don’t forget to include your policy in your employee handbook, and discuss the policy during training sessions and company meetings.

 

Effective investigation – Take a look at your investigation process. You should train your supervisors and managers in how to identify complaints. Once you’ve received a complaint, you should investigate promptly. Document complaints, witness statements and circumstances.

The EEOC recommends that you suspend the accused harasser, with or without pay, and immediately remove any offensive graffiti or material. Another option is to offer, if possible, a temporary transfer of either of the parties involved.

Identify and question all potential witnesses and make a note of those who were actual witnesses to the alleged harassment as opposed to those who just heard about it through others.

One of the EEOC’s biggest focuses will be if there are systemic issues that indicate a lackadaisical attitude about workplace harassment.

The January meeting emphasized the importance of employers raising the subject of harassment, expressing strong disapproval, developing appropriate investigation processes, imposing sanctions where appropriate, and informing employees of their rights under Title VII. That is what the EEOC will be looking for.

 

The takeaway

With the EEOC continuing to step up harassment investigations and charges, you need to review and, if needed, update your policies, training and investigative procedures to jibe with the agency’s expectations of an exemplary employer.

And remember, having a policy is insufficient if it is not communicated understandably to your workers. For example, in a workforce that includes many teens, the policy should be understandable to the average high school student.

Finally, it would be wise to secure employment practices liability insurance, which will usually cover costs associated with being sued or charged by the EEOC. We can help. Give Wright & Kimbrough a call! or go to contact us.

workplaceharassment

Protecting Your Firm as an Additional Insured

In the course of doing business, you may sometimes find yourself entering into contracts requiring that your business be named as an additional insured on another party’s insurance policies.

This is often done to make sure that your own insurance is not depleted by defense and indemnification costs for losses for which you may be legally liable as a result of the business relationship you have with the other party, and that are not due to your own firm’s direct negligence.

An additional insured is defined as an individual or entity that is not automatically included as an insured under the policy of another, but for whom the named insured’s policy provides a certain degree of protection.

There are many times when you may want your firm included as an additional insured on another’s policy. Here are just a few examples:

  • If you are a building owner, you want to be an additional insured on the property and general liability insurance of your tenants in case one of them damages your building or in case a visitor to the property is injured.
  • If you are the owner or a contractor on a construction project, you want to be an additional insured on the general liability insurance of your contractors and subcontractors in case there is an injury to one of their employees.
  • If you are a distributor or a retailer, you may want to be an additional insured on the insurance programs of the manufacturers of the products that you sell.
  • If a contractor comes onto your property to perform work of any type, including erecting displays or other maintenance or structural work, you will want to be named as an additional insured on their policy in case the display falls on someone, or someone is injured due to the work they are performing. You don’t want to be held responsible for any dangers or injuries created by their work.

If you are to become an additional insured on another company’s policy, you need to confirm that the other party has indeed named your company as an additional insured with its insurance company. Their word alone is not good enough.

You should demand a copy of the policy that explicitly lists your company as such. You want to see a copy of the policy and not the certificate of insurance, which is not sufficient proof that your company has been added.

Additional insured status is effectively conferred through an additional insured endorsement to the other party’s original insurance policy. An endorsement essentially serves as an amendment to the terms of an insurance policy that is incorporated into the relevant insurance policy. These amendments can take the form of an endorsement that specifically names a particular additional insured, or a general endorsement that identifies some class of parties as additional insureds.

But if there is ever a dispute about your company’s status as an additional insured, you will want to have in hand not only the other party’s certificate of insurance, but also a copy of the policy itself and the endorsement that makes your company an additional insured.

There are a few best practices that you can implement to help make certain your firm’s status as an additional insured has been properly secured:

  • At a minimum, always insist on receiving a copy of the relevant additional insured endorsement, as this is the instrument that establishes additional insured status;
  • An additional insured endorsement does not, however, state an insurance policy’s terms and conditions. In order to avoid being surprised by unexpected policy terms (such as strict notice requirement or unfavorable notice of cancellation provisions), you should ask for and receive a copy of the entire insurance policy under which you are an additional insured, and be sure to read it;
  • Retain additional insured endorsements and the relevant insurance policies for as long as there is any potential that claims triggering those policies might be made.

insurance grabbers

 

Post-Charlie Hebdo: Reassessing Your Need for Terrorism Coverage

The tragedy that unfolded in Paris at the satirical magazine Charlie Hebdo and a kosher market, as well as a number of other smaller-scale terrorism attacks, is evidence of a new kind of terrorism that’s hit the West.

Besides the risk of loss of life and injuries, an act of terrorism would sink most small and mid-sized businesses. But that doesn’t have to be the case, since the cost of terrorism coverage is relatively cheap compared to other lines of insurance.

Companies with a total insured value of less than $100 million paid a median of $51 per million in coverage in 2013, according to the “2014 Terrorism Risk Insurance Report” by Marsh. Prices differ depending on the industry and location, with construction paying some of the highest rates.

There was some concern that availability of terrorism coverage would dry up when it was unclear whether Congress would pass an extension of the Terrorism Risk Insurance Act, which provides a financial backstop for insurance companies in case of large-scale terrorist attacks.

However, Congress did pass that legislation and President Obama signed it into law. That in turn means that insurers will continue to offer stand-alone terrorism policies at reasonable rates.

It should be noted that even if your business is not hit by terrorism but is in an area where an event unfolds, it could still be affected. Besides the obvious – the risk to property – the biggest overall risk to businesses is lost revenue.

There are usually two categories of effects from terrorism:

  • Businesses that suffer direct damage, which would be covered by a terrorism rider. However, if they have a property policy, the damage would not be covered.
  • Businesses located in the area of the event. In the case of the Boston bombing, that was a rather wide area that was closed for more than a week as authorities investigated. Coverage for such businesses would be dependent on the interpretation of “civil authority” under the policy.
    A civil authority provision is usually contained in many business-owner property insurance policies. Civil authority provisions are usually written as additional coverage provisions, not exclusions. They generally provide coverage for lost business income due to an “action” taken by a civil authority, such as closing streets to investigate.

 

Meanwhile, payouts are also dependent up on how the government classifies an attack. Businesses with terrorism coverage have to wait for this ruling by the Treasury Department.

As part of this process, the Treasury Department says that the event or attack must be “committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion.” Additionally, total insured damage must reach at least $5 million.

 

Why not property coverage?

Business property insurance protects companies from financial loss due to the physical assets of a business being damaged. These can include the building the business is housed in, its inventory, its equipment and other essential contents. This type of coverage protects against things like fire, lightning, hail, wind storms, explosions, riots and vandalism.

Also, you can purchase endorsements that can be added to a policy that will protect it further. Common endorsements include ones for flood, earthquakes, business income and equipment breakdown.

Unfortunately, however, according to data from the Congressional Research Service, nearly four out of 10 commercial insurance policies have exemptions relating to terrorism, which would allow insurers to reject business interruption claims.

Large office buildings are much more likely to have terrorism insurance than small businesses.

 

Some issues to consider:

  • Is terrorism coverage worth it for your business? It’s up to you to decide if it’s worth it. There is a wide range of factors that you’ll use to determine whether this coverage is wise. First, consider your location. If you’re in a small town, then your need for this coverage is likely much lower than a company located in New York City.
    If you are concerned, you can start by analyzing your current insurance coverage and determine if you are protected in the event of a terrorist attack. Many businesses don’t know they have gaps in their coverage for terrorism.
  • Consider the cost. Cost is another issue, though it will be tied to your location. In a small town you might pay as little as $25 for an entire year’s worth of coverage, but in larger metropolitan areas the rates are typically higher, although not by much.
  • What’s covered and not covered by terrorism coverage? You’ll need to read the specifics of your policy, but generally speaking, terrorism insurance doesn’t cover nuclear attacks, biological attacks, or acts of war.

 

The takeaway

As with any type of coverage, the key to deciding if you need to add terrorism insurance comes down to a simple risk assessment. What do you stand to gain if you have the coverage and you need it, and what you stand to lose if you need it and don’t have it?

You can start by reviewing your exposures with us to determine the best way to handle this issue. We can help you make a decision that’s right for your company.

 

terrorism

 

A Safe Approach to Managing Swing and Night Shift Workers

Shift workers and night workers are often tired and sleep poorly as a result of their abnormal work schedules.

Workers who are tired often find it hard to concentrate and they are more apt to make errors or cause accidents as a result of being tired or inattentive, putting not only the worker at risk but also co-workers and the public that may come in contact with your worker.

About 5% of American adults work in the evening (or the swing shift), according to the Bureau of Labor Statistics. Permanent night workers and workers with irregular schedules make up another 4%. Still another 4% are rotating shift workers. Complicating matters is that some companies will switch employees’ schedules, having them work nights for a week or two and then switching them to a day or swing shift.

Besides the short-term effects of shift work or night work, there can be other repercussions for workers, such as digestive problems (including stomach ulcers and constipation) and heart disease. It can also take a toll on personal relationships, while the ramping up period after a vacation, when they revert to a normal schedule, can also take its toll.

For some companies running multiple shifts is unavoidable in order to keep the production line or services going, and while worker fatigue cannot be completely eliminated there are measures that an employer can take to keep reduce the adverse effects of these shifts.

According to the booklet Plain Language about Shiftwork, by the National Institute for Occupational Safety and Health (NIOSH), there are a number of measures employers can implement to reduce the ill effects of shift work, while maximizing the health and safety of their personnel.

             Consider alternatives to permanent night shift: One problem that researchers have found is that most night shift workers never get used to working at night, largely because they revert to a daytime schedule on their days off so that they can spend time with friends and family. And since night shifts typically have fewer workers around those that are toiling at night, may start feeling isolated or disaffected – not part of the “team.”

             Keep consecutive night shifts to a minimum: Some researchers suggest that only 2 to 4 nights in a row should be worked before a couple of days off. This keeps circadian rhythms from being overly disturbed and limits sleep loss.

             Avoid quick shift changes. Switching an employee from morning to night duty with only an 8-hour break doesn’t leave enough time for rest and could put the employee at danger of having an accident at work. You should make the switch only after a 24-hour break, according to NIOSH.

             Avoid long shifts and overtime if possible. More than eight hours at work can fatigue a worker already working the swing or night shift. It allows less time to rest. If you do require some overtime, avoid having staff work extra hours for more than three days in a row.

             Vary shift lengths depending on work. Try adjusting shift length to the workload. Heavy physical or mental work or monotonous work is especially difficult at night. Maybe night shifts could be shorter. If possible, assign workers doing heavy work to shorter shifts and lighter work to longer shifts.

             More breaks? Sometimes the standard lunch and coffee break every two hours is not enough to recover from fatigue. Consider the example of card dealers in casinos, who typically get breaks of 10 to 15 minutes every hour because their jobs require so much concentration. If their concentration is low, it is easier for a player to cheat at cards, and the casino will lose money. While your employees may not be looking out for cheats, their ability to concentrate is likely equally as important to your company’s bottom line.

             Keep the schedule regular and predictable. Regularly scheduled work results in regularly scheduled rest.

One issue you need to consider is that everyone has natural circadian rhythms, which dictate when we are at our peak performance – for most people their peak performance levels are late morning and afternoons. Some people, like fisherman may be “morning people” who are most productive in the early hours of the day, while musicians, for example, may hit their peak circadian rhythms in the evening, when most other people are winding down.

Staff that work night shifts also need to try to get the right amount of sleep. They should experiment with when they go to bed after a night shift to find out when they sleep mostly soundly. It is a good idea to go to bed as early as possible after the night shift in order to maximize sleep. A second sleep could also be taken in the afternoon to get ready for the night shift. Ideally they should also exercise regularly and eat a proper diet.

shift guy

Shift workers and night workers are often tired and sleep poorly as a result of their abnormal work schedules.

Workers who are tired often find it hard to concentrate and they are more apt to make errors or cause accidents as a result of being tired or inattentive, putting not only the worker [KM1] at risk but also co-workers and the public that[KM2]  may come in contact with your worker.

About 5% of American adults work in the evening (or the swing shift), according to the Bureau of Labor Statistics. Permanent night workers and workers with irregular schedules make up another 4%. Still another 4% are rotating shift workers. Complicating matters is that some companies will [KM3] switch employees’ schedules, having them work nights for a week or two and then switching them to a day or swing shift.

Besides the short-term effects of shift work or night work, there can be other repercussions for workers, such as digestive problems (including stomach ulcers and constipation) and heart disease[KM4] . It can also take a toll on personal relationships, while the ramping up period after a vacation, when they revert to a normal schedule,[KM5]  can also take its toll.

For some companies running multiple shifts is unavoidable in order to keep the production line or services going, and while worker fatigue cannot be completely eliminated there are measures that an employer can take to keep [KM6] reduce the adverse effects of these shifts.

According to the booklet Plain Language about Shiftwork, by the National Institute for Occupational Safety and Health (NIOSH)[KM7] , there are a[KM8]  number of measures employers can implement to reduce the ill effects of shift [KM9] work, while maximizing the health and safety of their personnel.

·         Consider alternatives to permanent night shift: One problem that researchers have found is that most night shift workers never get used to working at night, largely because they revert to a daytime schedule on their days off so that they can spend time with friends and family[KM10] . And since night shifts typically have fewer workers around those that are toiling at night, may start[KM11]  feeling isolated or disaffected – not part of the “team.”

·         Keep consecutive night shifts to a minimum: Some researchers suggest that only 2 to 4 [KM12] nights in a row should be worked before a couple of days off. This keeps circadian rhythms [KM13] from being overly disturbed and limits sleep loss.

·         Avoid quick shift changes. Switching an employee from morning to night duty with only an 8[KM14] -hour break doesn’t leave enough time for rest and could put the employee at danger of[KM15]  having an accident at work. You should make the switch only after a 24-hour break, according to NIOSH.

·         Avoid long shifts and overtime if possible. More than eight hours at work[KM16]  can fatigue a worker already working the swing or night shift. It allows less time to rest. If you do require some overtime, avoid having staff work extra hours for more than three days in a row.

·         Vary shift lengths depending on work. Try adjusting shift length to the workload. Heavy physical or mental work or monotonous work is especially difficult at night. Maybe night shifts could be shorter. If possible, assign workers doing heavy work to shorter shifts and lighter work to longer shifts.

·         More breaks? Sometimes the standard lunch and coffee break every two hours is not enough to recover from fatigue[KM17] . Consider the example of card dealers in casinos, who typically get breaks of 10 to 15 minutes[KM18]  every hour because their jobs require so much concentration. If their concentration is low, it is easier for a player to cheat at cards, and the casino will lose money. While your employees may not be looking out for cheats, their ability to concentrate is likely equally as important to your company’s bottom line.

  • Keep the schedule regular and predictable. Regularly scheduled work results in regularly scheduled rest.

 

One issue you need to consider is that everyone has natural circadian rhythms, which dictate when we are at our peak performance – for[KM19]  most people their peak performance levels are late morning and afternoons. Some people, like fisherman may be “morning people” who are most productive in the early hours of the day, while musicians, for example, may hit their peak circadian rhythms in the evening, when most other people are winding down.

Staff that work night shifts also need to try to[KM20]  get the right amount of sleep. They should experiment with when they go to bed after a night shift to find out when they sleep mostly soundly. It is a good idea to go to bed as early as possible after the night shift in order to maximize sleep. A second sleep could also[KM21]  be taken in the afternoon to get ready for the[KM22]  night shift. Ideally t[KM23] hey should also exercise regularly and eat a proper diet.


 [KM1]themselves

 [KM2]Either the same as above para or poss “members of the public who

 [KM3]delete: will

 [KM4]Could add in why, eg. because of irregular mealtimes … or whatever the cause.

 [KM5]added a comma

 [KM6]delete: keep

 [KM7]Added acronymn as it’s mentioned later on.

 [KM8]added “a

 [KM9]probably “shift” not “shit” work (although maybe that too?)

 [KM10]I would transpose “friends and family” as “family” probably more important.

 [KM11]How about:  And since typically most companies have fewer staff on at night, night shift workers may start feeling …

 [KM12]2 to 4 – is this your style for numbers? Not two to four? Sorry, I can’t see anything in Brian’s notes about it but it looks like should be “two to four” from other examples he gave me. If not then written out numbers need to be changed – I haven’t highlighted them, so let me know if you want me to change them.

 [KM13]body clocks?

 [KM14]As above – eight?

 [KM15]changed from “for”

 [KM16]added “at work”

 [KM17]Are they recovering from fatigue or trying to stop their workers from getting fatigued?

 [KM18]added s to minute

 [KM19]changed from … performance. For most …

 [KM20]added “to”

 [KM21]changed from “also could”

 [KM22]added “the”

 [KM23]Added “Ideally”

Employees Suing for Pay for Pre-, Post-shift Work

For years there’s been a debate in the manufacturing, farming, mining and like industries about the merits of paying employees for the time they spend putting on and removing work clothes and protective gear before and after their shifts.

Individual and class-action lawsuits have been filed by employees seeking pay for the time they spend “donning and doffing,” which can sometimes be 15 minutes or more in some industries.

But these lawsuits may no longer be the domain of those labor-intensive industries. In recent years, office and service sector employees have started suing their employers for back wages for time they spent performing what they consider job-related functions before and after their work shifts.

Consider:

 

The whole enchilada – Two lawsuits, one filed in October, are seeking class status in accusing the national eatery chain Chipotle of requiring employees to continue working after clocking out. In the latter case, a former employee accused Chipotle of conducting training, meetings and other activities which employees were “required to attend, but for which they are not allowed to punch in.”

Additionally, the suit alleges that the company encouraged managers “to require that work be performed off the clock” after 12:30 a.m. and that systems were put in place for “reward and punishment” of supervisors who either stayed within or exceeded their payroll budgets.

 

The bankers – A court recently approved a $6 million settlement in a case where two employees accused their employer, TD Bank, of requiring them to arrive early to work each day in order to undertake various procedures to open the branch for business.

Amongst the requirements were various security functions that needed to be performed both inside and outside the branch before the computers could even be booted up for the day’s activities.

The unpaid-overtime lawsuit claimed that such activities took between 15 and 20 minutes to complete each day. Over a five-day week, the work would combine to an hour and 15 minutes at minimum, and to an hour and 40 minutes at the outside.

 

Warehouse screening – In January 2014, an employee sued Amazon.com Inc. for allegedly failing to compensate her and others adequately for an end-of-shift screening process that “approximately takes between 10 and 20 minutes and, with delays … can last longer.”  The plaintiff further added that Amazon does not pay its warehouse workers for time spent passing through the same screening process during meal breaks or for walking to that screening area.

 

The takeaway

Under the Fair Labor Standards Act (FLSA), employers must pay covered non-exempt employees at least the federal minimum wage for all hours worked in a workweek, as well as an overtime premium for all hours worked over 40 in a workweek.

 

In general, compensable hours worked include all time an employee is on duty or at a prescribed place of work and any time that an employee is suffered or permitted to work.

Under the Portal-to-Portal Act, which supplements and limits the FLSA, employers are not required to pay workers for incidental activities before and after work that are not integral to the employee’s principal work activities. This includes things like time traveling to and from work.

At the same time, the Portal-to-Portal Act states that employers must count as working time incidental activities that are integral to the job, such as depositing the mail after the close of business, or changing clothes and showering if required by the employer.

In light of this new legal trend, you need to be careful about how you are compensating your staff for all the time they spend on activities that are integral and indispensable to their principal work duties.

So, if you are requiring your workers to perform duties before or after clocking in, you may be running afoul of the law. If you do, you should revisit your policy and talk to a labor attorney. It would be wise to put in place policies and procedures for tracking the time employers spend on those activities to make sure they are properly paid.

 

workers

 

Bureau Considers Better X-Mod Calculation Regimen

Last year the Workers’ Compensation Insurance Rating Bureau of California instituted new rules that limited to 25 percentage points the amount an X-Mod can change due to a single claim.

Now it’s considering additional regulations to further improve the way X-Mods are calculated. The goal is to ensure that X-Mods better reflect the true claims history and costs of employers, and to eliminate the X-Mod spike for smaller employers who experience just one claim.

The issue of one claim sending an X-Mod spiraling has been a thorn in the side of many smaller employers. Sometimes the insurer may increase reserves for a claim because it expects costs to mount quickly. When those reserves are placed on a claim, it will be reflected in your loss reports when it comes to calculating your X-Mod.

Currently, the Rating Bureau uses a single split point for dividing primary and excess losses. The new system it’s mulling would use 90 or more different thresholds based on the size of any given employer.

The goal of this possible change is to make California’s current X-Mod system a better predictor of an employer’s likelihood to suffer a compensable workplace injury.

As currently drafted, the multiple split point formula would essentially use just an employer’s actual primary losses, plus their expected excess losses divided by their expected losses, to determine their X-Mod.

Primary losses are the costs that the insurer would expect to pay for a given workplace injury, and excess losses are those that go above and beyond those initial primary losses. Excess losses are driven by the severity of the injury and the worker’s ability to recover from the injury and return to work.

This process is in its early stages and the proposed effective date is not until 2017, according to press reports.

Currently, the experience rating plan uses a single split point set at $7,000 for all employers, which critics say unfairly affects smaller risks and is not as responsive for larger employers.

Any claims incurred up to the split point value are included in an employer’s X-Mod calculation at full value, while the rating formula only considers a portion of the claims dollars over that amount.

The Rating Bureau has resisted raising the split point (last year it entertained a recommendation that it be raised to $9,000) because of the negative impact it would have on smaller employers, and has been exploring alternatives to the single split point system.

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Quake Preparedness: Avoiding Injuries from Falling Items, Debris

While earthquake safety training should be a part of any California employer’s safety program, it’s important from a workplace safety perspective to understand how your employees could be injured during a temblor.

While ducking and taking cover are good skills for your employees to reduce the likelihood of injury, one area that many employers overlook is the dangers of the workplace itself to employees during a quake.

Most earthquake-related injuries result from collapsing walls, flying glass and falling objects as a result of the ground shaking, or people trying to move more than a few feet during the shaking. Much of the damage in earthquakes is predictable and preventable.

Cal/OSHA many years ago actually contemplated creating new regulations that would have required employers to evaluate the hazard of objects falling or toppling during an earthquake, secure racks and protect workers with physical barriers.

In the end though, it opted against engaging in new rulemaking after concluding that existing regulations were enough, since they and the Injury and Illness Prevention Standard require employers to evaluate and mitigate workplace hazards.

Since those broad regulations could theoretically be construed as requiring certain earthquake preparedness procedures if you are located in a quake-prone area, you may want to consider these tips that were created by the Federal Emergency Management Agency and Cal/OSHA:

  • Check with your local building-regulatory agency to determine the seismic design provisions for your building, and whether it needs retrofitting.
  • Evaluate your workplace for non-structural weaknesses, which FEMA says can be more dangerous and costly than structural vulnerabilities. “Any non-structural items that are not effectively anchored, braced, reinforced, or otherwise secured could become safety hazards or property losses in an earthquake,” the federal agency warns.

 

Hazardous items can include items located six feet or more above the floor. Cal/OSHA recommends:

  • Locating employee work stations and exits away from such areas.
  • Anchoring, bracing, containing or restraining objects by using brackets, clips, latches, bolts, screws, tie-downs, braces and hook-and-loop material.
  • Using physical barriers, such as fencing, netting or barricades.
  • Restraining objects by methods designed by a California-licensed structural engineer.

 

Cal/OSHA requires employers to report all serious workplace injuries, including those that are the result of an earthquake.

And the main regulations governing workplace safety as it pertains to the risk of falling objects or debris during an earthquake are in Section 3241 of the California Code, which requires employers to store material in a manner that prevents it from tipping, falling, collapsing, rolling or spreading.

It also requires employers to secure merchandise on shelves higher than 12 feet in “working warehouses.”

 

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