KPA Blog

Posts Tagged ‘Enforcement’

Yet another discrimation lawsuit and settlement in the transportation industry

Tuesday, July 6th, 2010

Because KPA offers HR compliance consulting and HR software we monitor all of the lawsuits and settlements brought by the EEOC.   Frankly it is rather depressing to me (as an HR professional and as a person)  that 45 years after the EEOC was established there are still so many claims and settlements for discrimination, harassment and retaliation.    My friends who are  employment attorneys could not be more pleased that there seems to be a never ending source of revenue from employers who can’t be bothered with good HR practices UNTIL the lawsuit lands on their desk.

The latest discrimination and retaliation claim settled by a company involved in the transportation industry involves McGriff Industries. McGriff Industries settled the suit for $100,000 along with required activities involving implementing effective anti-discrimination policies and procedures, and training its employees, supervisors and managers on the prohibitions against racial misconduct in the workplace. The company will also be required to develop a system for reporting, investigating and addressing complaints of workplace racial misconduct; hold all employees accountable for engaging in it; and hold supervisors and managers accountable for tolerating or failing to address such misconduct.  

  Let’s review the 4 things employees really must do to ensure they are not next in the list of companies the EEOC has settled with in 2010. 

1) When in doubt on the right thing to do - don’t do anything (don’t fire, don’t hire,) without consulting the experts (your attorney, a certified HR professional) and then listen to what they tell you.

2) Automate processes for hiring, performance management, training and termination with software so you have complete records, and forced compliance to best practices for essential HR process. With the multitude of HR software programs out there at every price point,  some even specialized by industry, there is no excuse not to automate process and force compliance. 

3) Establish policies and procedures for employees to report issues and concern- and respond to them (ethically, humanely and legally).

4) Train, train, train- never assume your managers and employees know what to do and more importantly what not to do to avoid harrassment, discrimination or retaliation.

 Join the conversation: Are you sure your company would survive an EEOC audit?

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Posted in Department of Labor, HR | Leave a Comment »

OSHA Severe Violator Enforcement Program Now in Effect!

Thursday, June 24th, 2010

“The New OSHA” as described by many department heads is showing its colors and making good on its promises.  The recently enacted Severe Violator Enforcement Program (SVEP) is  now in effect and being enforced.  What exactly does this mean to you?

In the words of David Michaels, OSHA administrator, “SVEP will help OSHA concentrate its efforts on those repeatedly recalcitrant employers who fail to meet their obligations under the Occupational Safety and Health Act. It will include a more intense examination of an employer’s practices for systemic problems that would trigger additional mandatory inspections.”

In reality it means more inspections, bigger fines and larger inspection scope.  Basically if you’re not making real efforts to keep your employees safe, it’ll cost you.  Under this program OSHA has promised to visit more employers with higher incidence rates, automatically include employers for follow up inspections, visit other locations run under the same corporate umbrella and raise fines for the first time since the 1990s.  The fine increase is significant from a max penalty for a  willful violation from $70,000 to $250,000. 

We’ll see how all of this pans out for our clients, although with what we’ve personally seen in the past few months in much of the country, this program certainly seems to be on track.  Have any of you seen an increase in regulatory pressure?

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Posted in Accidents, Citations, Department of Labor, OSHA, Safety | Leave a Comment »

BP has a dismal safety record, do you?

Friday, June 4th, 2010

760 violations at BP versus 1 at Exxon!

ABC News published an article recently about BP’s dismal safety record, citing that OSHA statistics show BP ran up 760 “egregious, willful” safety violations, while Sunoco and Conoco-Phillips each had eight, Citgo had two and Exxon had one comparable citation.

The article goes on: in two separate disasters prior to the Gulf oil rig explosion, 30 BP workers have been killed, and more than 200 seriously injured. In the last five years, investigators found, BP has admitted to breaking U.S. environmental and safety laws and committing outright fraud. BP paid $373 million in fines to avoid prosecution.

How does this story apply to dealerships? 760 violations at BP versus 1 at Exxon; does this happen at dealerships? Our engineers visit about 3,000 dealers annually, inspect them on potential OSHA violations, and develop a comprehensive safety program. While we don’t see such a sharp difference as between BP and Exxon, we unfortunately have to admit that we see very large differences between dealers that have a safety culture and those that don’t.  Regrettably the general answer is “yes, there are dismal safety records at certain dealerships.”

In our February newsletter we wrote an article about Group 1 Automotive and Penske Automotive Group taking the lead in compliance management. Though both groups consist of nearly 100 dealer rooftops, these groups have effectively managed their compliance scores to an unbelievable 97% to  98% and have held this level of compliance consistently. To put this in perspective, the average compliance score for a facility prior to getting started with KPA’s safety program is about 85%. Both Group 1 and Penske Automotive Group are not only reaching high level of compliance across one store, they are doing it for all stores, across all states, regardless of the management hierarchy. Essentially, Group 1 and Penske have managed their compliance program to virtually spot free facilities in less than one year.

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Posted in Accidents, Citations, OSHA, Safety | Leave a Comment »

FTC To Begin Red Flags Rule Enforcement June 1, 2010

Wednesday, May 19th, 2010

No more extensions-the FTC will begin enforcement of the Red Flags Rule on June 1, 2010.   Since the rule was to go into effect November 2008, and then the FTC delayed  enforcement in May 2009, November 2009 and June 2010, everyone should have a plan in place already; but for  those of you who have take procrastination to a new level here are some resources to ensure you are ready by the June 1 date.   

The FTC website provides how to guides, FAQ and templates and forms at http://www.ftc.gov/redflagsrule .

Review Red Flag Rule for Dealership, a KPA whitepaper at http://www.kpaonline.com/authorizedFiles/Red_Flags_Rules_Overview_wp.pdf

Join the conversation: is your Red Flags program in place?

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Posted in HR | Leave a Comment »

OSHA fine amounts increasing?

Wednesday, April 28th, 2010

Just read an article in Tire Review that OSHA fined a Toledo dealer $177,800 as the result of an October 2009 accident in which four employees were injured. OSHA cited the dealer for three violations of worker safety regulations after investigating the accident. The employees suffered injuries when an agricultural tire being worked on exploded. No question that the accident was very serious as an OSHA spokesman said that the dealer did not provide a safety cage or barrier to protect employees working on large commercial tires, failed to ensure employees worked outside the trajectory path, and that the tire’s maximum inflation pressure was exceeded when the employees attempted to seat the tire’s beads. In addition, citations were issued because employees failed to wear safety glasses and not having a required valve pressure gauge.

My point here is only that I’m under the impression that the fines imposed by OSHA are increasing? Do you have similar experiences? What do you think? Please respond below with your comments.

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Posted in Accidents, Citations, OSHA, Safety | 2 Comments »

Yet another discrimination settlement with a dealership, but this time for disability discrimination.

Monday, March 8th, 2010

The number of lawsuits, claims and settlements’ involving dealerships and the EEOC continues to grow in 2010.  Beyond gender and age discrimination employees must also ensure that they do not discriminate against individuals with real or perceived disabilities.   Just this month a dealership in Hawaii settled a claim that included a $32,500 payment to a job applicant and a three year consent decree to remedy alleged disability discrimination.   The consent decree requires that the dealership implement an internal policy, procedures and staff training to safeguard against disability discrimination. The car dealership must also submit annual reports to the EEOC to track future complaints of disability bias and requests for disability-related accommodations during the hiring process.

In its lawsuit (EEOC v. Valley Isle Motors, Ltd., Case No. CV09-0053 HG KSC), the EEOC asserted that the car dealership reneged on an offer to hire a job applicant as a salesperson only after a urine test revealed he was taking prescribed medication. Valley Isle Motors then erroneously perceived the applicant as too disabled to do the job despite normal medical test results and medical authorization to the contrary, the EEOC said.    The EEOC press release quoted Anna Y. Parks, regional attorney for the EEOC’s Los Angeles District Office. “Employers cannot make assumptions about a prospective employee’s ability to work… the ADA expressly prohibits that stereotypes of this nature weigh into the decision to hire or deny hire to an individual.” Timothy Riera, director of the EEOC’s Honolulu Local Office, added “Employers should heed the lesson learned by Valley Isle Motors and be mindful to judge a candidate by his or her qualifications, not some ill-informed presumption. Communication with prospective employees is the key in determining whether one’s actual or perceived condition will interfere with work. Businesses should take advantage of appropriate training opportunities that are available to learn how to appropriately engage in that interactive process.”

The bottom line is that employers cannot make an assumption about the candidate’s ability to perform the work and must make certain that all hiring practices are in  accordance with the Americans with Disabilities Act. Here are five simple steps that will help toward ensuring that you are not discriminatory toward individuals with real or perceived disabilities.

1) Have a clear, complete and detailed job description for every position so that you can objectively judge a candidate’s ability to do the job against the actual requirements.

2) Confirm with a medical expert that the applicant can do the job with reasonable accommodations or that the perceived disability is even real.  A medical exam may be necessary and your expert should have experience in Occupational or Workplace Health.

3) Consider that individuals with disabilities often make high quality and loyal employees.  Tax credits may be available to assist companies with making reasonable accommodation and for hiring individuals with disabilities.

4) Take advantage of the tools and training available through your state or federal office of the Department of Labor including the excellent information on the EEOC website.  http://www.eeoc.gov/laws/types/disability.cfm

5) Consult with qualified legal hiring prior to not hiring any individual with a disability.

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Posted in Citations, Department of Labor, HR | Leave a Comment »

Does Background Screening Really Reduce Risk?

Tuesday, March 2nd, 2010

  If you haven’t already reviewed your screening and hiring policies on applicants with criminal records put it on your “to do list” for 2010.   Highly published and expensive lawsuits related to negligent hiring make it seem that background screening is necessary step in your hiring process- but is it?   With experience both as a HR Director and working for a leading background screening vendor, my answer is maybe- it can be an important step and will reduce risk but only if done in accordance with best practices and within the state and federal regulations.  

 The Employment Opportunity Commission (EEOC) and the federal courts will soon require evidence-based screening and hiring policies. Within the next 12 to 18 months, employers can expect to see the EEOC issue new guidelines that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices.  Employers will benefit from having clarity in what is permissible.  If you now use the common five-year, seven-year, 10-year or lifetime employment bars for people with criminal records you need to think about how you can validate this information and show business necessity for the specific employment bar.  Most screening vendors claim that criminal checks reduce workplace violence, theft and fraud, but  don’t have any meaningful empirical evidence- with the expected EEOC guidelines and recent lawsuits on discrimination based on background screening they should be working to produce this information over the next several months.   If you current vendor can’t help you will need to consider a new vendor.  Employers may also look to the work of social scientists such as Alfred Blumstein and Shawn Bushway.  Blumstein published a major study in 2009 that actuarially identifies the point at which an individual with a criminal record is at no greater risk of committing a crime than other individuals of the same age. 

 The bottom line is that employers should not use background screening as the only criteria for hiring or screening applicants.  Behavioral interviewing and assessment testing along with reference checking are also important tools.  If  you are using background screening having job-specific hiring policies and a case by case review of all background screening results is recommended- and don’t forget two time tested HR practices for mitigating risk:  proper supervision and effective performance management.

Join the conversation: Do you use background screening in your hiring process and do you believe it reduces the risk of a bad hire or a negligent hiring lawsuit? 

 

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Posted in Department of Labor, HR | Leave a Comment »

Department of Labor (DOL) investigation and enforcement in 2010

Wednesday, February 3rd, 2010

Investigation and enforcement is the Department of Labor’s focus in 2010. Despite an overall reduction of $300 million in discretionary spending, the Department of Labor will ask Congress for an increase in workplace enforcement funding of $67 million, or 4 percent, according to the budget it released on Monday, February 1.

In an online video statement and Q&A, Secretary of Labor Hilda Solis  emphasized department funding for investigation and enforcement along with training programs. The agency request for fiscal year 2011, which begins October 1, 2010, totals $117 billion.   Secretary Solis indicated that the $1.7 billion allocated in the DOL budget for worker protection programs would allow the agency to restore staffing to 2001 levels. Of the 350 employees that the department expects to add over the next fiscal year, 177 are investigators and other enforcement staff.

For instance, the Wage and Hour Division would receive $244 million in funding, a $20 million increase, and hire 90 new investigators. The Occupational Safety and Health Administration would get $573 million, an increase of about $14 million.  OSHA will add 25 new inspectors in 2011 and reallocate 35 to enforcement from a program that helps businesses comply with safety laws.

“We need to decide whether we will spend our limited resources on supporting those companies who really ‘get it,’ who are doing a great job at protecting their employees,” Solis said. “Or do we spend our scarce resources on companies that disregard workplace safety and allow workers to die in situations that could easily have been prevented?”

The department also indicated that it is going to crack down on employers that define workers as independent contractors rather than employees. Critics say the move allows companies to pay lower wages and benefits. As part of a joint initiative with the Department of Treasury, the DOL budget includes $25 million to target “misclassification” and hire 100 additional enforcement personnel.

Are your HR and OHSA programs in compliance? If not you might want to think about improvements before one of the new investigators comes  knocking at your door.

Join the conversation- do you agree with the emphasis on investigation and enforcement?

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Posted in Department of Labor, HR, OSHA | Leave a Comment »