Tag Archive for 'employees'

Be OSHA Ready

Knowing Your Rights Will Help Protect Your Organization if OSHA Comes Knocking

By Samantha Monsees

Fisher Phillips

Picture this. You’re in the middle of a large project and OSHA shows up at your worksite. Standing before you is a government agent whose sole purpose is to identify and cite safety hazards at your worksite. A knock from OSHA (or any government enforcement agent) is disruptive, stressful and intimidating. But don’t panic. You have far more rights than you realize, and when OSHA knocks, you can (and should) assert those rights to protect your organization. 

Reasonable Time, Reasonable Manner

Unless you are in the unfortunate position of having just reported a serious injury to OSHA, you will not know when OSHA is coming. In most situations, it’s illegal for OSHA to give you advance notice. As Murphy’s Law dictates, OSHA will show up demanding an inspection during your busiest time of day, or when your project manager is out sick or you’re shorthanded. Section 8(a) of the OSHA Act authorizes OSHA to inspect your worksite, but the good news is this same provision requires that the manner, timing and scope of the inspection be reasonable. 

Opening Conference

Keeping this reasonableness requirement in mind, the opening conference is your opportunity to determine why OSHA is there and to negotiate a reasonable scope before the inspection begins. It is a best practice to designate a conference room or other office to conduct the opening conference, which is away from and out of view of your construction site.

Similar to your right to demand a warrant from a police officer who shows up at your house, you have a Fourth Amendment right to demand a warrant from OSHA before letting a Compliance Safety and Health Officer (CSHO) inspect your worksite (unless there is the presence of an imminent hazard). Once OSHA returns with a warrant, they will most certainly scrutinize your worksite more harshly than if you had cooperated initially. On the other hand, if you are unable to reach an agreement with the CSHO on the scope of the inspection or you need additional time to allow the proper representatives to arrive to your worksite, a warrant may be appropriate. This is determined on a case-by-case basis, and you should consult counsel before demanding a warrant. 

Walk-Around

After you agree to the proper scope of the inspection, you (and your counsel) have the right to accompany the CSHO throughout the inspection. If there are other employers (such as subcontractors) on your worksite, it is a best practice to have a procedure in place for notifying the proper representatives of the other employers that OSHA is on site.

Take detailed notes of what the CSHO is doing during the walk-around, which employees are being observed and anything that is said by management or OSHA. The CSHO will want to take pictures and videos during the walk-around inspection. You have a right to – and should – take the same pictures and videos as the CSHO. If the CSHO wants to take samples or perform testing, you have the right to advise OSHA you do not consent to testing unless and until you are able to perform a side-by-side test conducted by an independent industrial hygienist or other specialist. Down the road, it will be difficult to challenge the results of OSHA’s testing without having your own test to compare.

Because the CSHO is using the inspection to collect evidence to support citations, managers should not volunteer additional information that is not requested and certainly should not admit that he or she is aware of a potential hazard. This is because OSHA imputes knowledge of managers to your organization. OSHA must prove the following to establish that a standard was violated: (1) the standard applied to the cited condition; (2) the terms of the standard were violated; (3) one or more employees had access to the relevant hazard; and (4) the employer knew or, with the exercise of reasonable diligence, could have known of the presence of the violation. In doing so, OSHA can rely on statements made by the employer’s managers at any time during the inspection. It makes no difference if the manager makes the comment during the opening conference, during the walk-around, during a formal interview or in idle small talk – it can (and will) be used against the employer. 

The compliance officer will inevitably request a list of documents. In most instances, you are only required to provide your OSHA 300 logs within four hours of OSHA requesting them. For all other documents, request a written list of the requested documents and designate one representative to communicate with OSHA regarding your production of documents. This allows you to carefully inspect the list of documents to determine whether the request is reasonable, whether there are any trade secret or privilege concerns in the documents requested, and what documents should be furnished.

Employee Interviews

It is important that both your management and non-management employees understand their rights and are instructed to tell the truth. Non-management employees are not required to participate in OSHA interviews, but if they refuse, OSHA could issue a subpoena at a later date. If the employee agrees to participate, he or she has a right to a private interview without management and also has a right to refuse to be recorded in any fashion. Any union employees may have a union representative present during the interview, as well.

In contrast, management employees have a right to a management representative or counsel during the interview. You also have a right to schedule management employees for a later date, after you have had the opportunity to meet with and prepare the managers. For the reasons discussed above, managers should be prepared in advance for a CSHO interview, should not permit the CSHO to record their interviews in any format, and should not verify or sign off on the CSHO’s notes of the interview. 

Closing Conference

After the CSHO conducts the walk-around, he or she will conduct a closing conference. This is your opportunity to learn what violations the CSHO believes exist at your worksite and why. This is also a time to note any abatement of hazards that was made during the inspection as well as request a copy of any photographs or monitoring results taken by the CSHO.

After the Inspection

If you receive a Citation and Notification of Penalty, you have the right to contest any citation issued to your organization, including the proposed penalties and abatement dates. Just because OSHA issues a citation does not mean your organization has violated the OSH Act. OSHA is required to prove a violation occurred.

Additionally, you should consider the potential impact of simply accepting and paying an OSHA Citation. While OSHA citations are harmful to any employer, some organizations rely on their safety record to win bids and keep premiums down. Even more troubling, an OSHA citation can be used as evidence of negligence in an accompanying liability case against your organization. 

Best Practices

  • If you are able and time permits, have an attorney present during the OSHA inspection to provide most of the information to the OSHA inspector. 
  • Notify any subcontractor or other employers on your worksite that OSHA has arrived.
  • Reasonably limit the scope, time and manner of the inspection.
  • Arrange interviews of management employees at a later date after you have an opportunity to prepare.
  • Refrain from volunteering unnecessary information that may impute knowledge of a hazard on your organization. 

OSHA inspections can be stressful for all involved, but they don’t have to be. Knowing what your rights are and when to assert them will help protect your organization.

Samantha Monsees is an attorney in the Kansas City office of national labor and employment law firm Fisher Phillips. She can be reached at smonsees@fisherphillips.com

This feature appeared in the December 2019 issues of the ACP Magazines:

California Builder & Engineer, Construction, Construction Digest, Construction News, Constructioneer, Dixie Contractor, Michigan Contractor & Builder, Midwest Contractor, New England Construction, Pacific Builder & Engineer, Rocky Mountain Construction, Texas Contractor,
Western Builder

Construction Enters the IoT Age

Uses Data-Driven Visibility to Improve Safety, Reduce Risk on the Jobsite

By Ian Ouellette, Triax Technologies

Construction projects are on the rise across the country – from the growth of mixed use buildings in urban areas, to major renovations taking place in higher education and K-12 institutions. How can contractors and those responsible for building maintenance ensure the safety of workers, occupants and the general public during such disruption? Many are turning to Internet of Things (IoT) technologies to gain greater visibility and control. 

According to market research firm, IDC, worldwide IoT spending will surpass the $1 trillion mark in 2022. It’s already disrupting many industries – from gathering sensory data on agricultural crops, trucking routes or the state of consumer appliances, to monitoring patient heart rates in healthcare. Construction has joined this IoT revolution. A study released by Dodge Data and Analytics, in partnership with Triax Technologies, found that nearly three-quarters of contractors surveyed believe IoT will help them control occupational risks, and about half expect it to reduce risks to the public, as well as financial risks and those related to property damage and construction defects.

So how is IoT helping to reduce risk, while increasing productivity on the construction site?  

Improving Worker Safety on the Chaotic Construction Site

Construction remains an inherently challenging environment, with heavy materials, machinery and equipment, as well as multiple subcontractors and tradesmen all working at once. 

Along with these challenges, a serious labor shortage is forcing general contractors to hire from an increasingly limited pool. Being short-staffed comes with its own safety and operational risks, and when builders rush to complete a project, corners may be cut, safety procedures may be overlooked, and more accidents may happen. 

Given this environment, it’s no wonder that it ranks among the highest industries for worker injuries. But, in addition to the potential for injuries, safety incidents on the jobsite can have significant business impact, leading to lost time, decreased productivity and employee morale, along with rising insurance costs.

To improve safety across the project chain, owners/developers, contractors and subcontractors, are increasingly turning to IoT data, gathered in real-time from sensors worn by workers or tagged on equipment, to gain remote visibility into what is happening. How many workers are on site by trade and sub; how many safety incidents have occurred on site; where did they happen and who was nearby, are all key questions that need to be answered. IoT technology and analytics are helping to answer these questions and more, replacing assumptions with real-time data. 

In addition, wearable devices are not only showing the available manpower and location of your workforce, but it also can help detect and document worker falls, provide tools for workers to report hazards/signal distress in the field, and communicate the need to evacuate in real-time, from anywhere on the site.

Contractors armed with real-time jobsite data aggregated from IoT-based devices can better understand – and if needed, change – worker behavior, safety procedures and how work is managed onsite to take a more proactive approach to safety. Instead of locking insights into paper logs or files based on subcontractor, project or region, IoT-enabled, real-time safety data analysis allows construction companies to share these project insights with other key stakeholders and apply learnings to the next project, enabling continuous refinement of safety practices and procedures.

Keeping the Public Safe

With construction projects on the rise across healthcare facilities, schools and mixed-use buildings, it’s not only the safety of workers that needs to be addressed, but also the security of the general public and occupants of buildings.  When workers are equipped with IoT-based wearable sensors that are compatible with access control technology, it can ensure compliance with regulations by granting entry through a turnstile only to workers with up-to-date training and certifications as well as authorization to be on site.

Further, with beacons placed at areas that are off limits to workers, such as student restrooms, patient hospital rooms or completed apartment floors, projects managers can see in real-time if a worker is near one of these places of interest.

Managing the Financial Risk 

Since time really is money when it comes to construction projects, IoT technology is solving another critical need by helping contractors manage financial risk. It enables them to keep track of, and effectively manage, the many moving parts on a jobsite – including people, equipment, tools and more, to keep projects on time and on budget. 

Contractors are beginning to use analytics, driven by data captured from IoT sensors, to improve efficiency on the jobsite, better forecast projects and keep them on track. For example, by putting sensors on equipment and tools, contractors can reduce the time wasted in tracking them down. This is a sorely needed capability considering that an average construction worker spends about 20 percent of their time waiting for materials, equipment, or information, according to a study by the Department of Construction Science and Management at Clemson University. 

As with many other industries, IoT is becoming the must-have technology in the construction tool belt. It holds great promise in providing the data-driven insights that can improve the efficiency of a construction site, and the safety of workers and the general public. As it continues to take hold and evolve, we can expect to see new uses, integrations and innovations that will help usher in a safer and smarter approach to construction.

Different Types of Safety Gloves for Different Purposes, from Construction to Cleaning, Oil Rigs to Laboratories

By Jordan McDowell

Whether you work in a laboratory or you’re doing construction on the road, finding the right pair of gloves for you is about more than the perfect

fit. Different types of safety gloves provide unique types of protection and what’s effective for one job is useless in another. 

Did you know that Occupational Health & Safety found that over 40% of workplace incidents are hand accidents? Avoid hand incidents on the job with the ideal type of glove for you and your team. Read on here to discover nine different types of work safety gloves and when you should use them.

1. Disposable Gloves

You see these gloves in doctor’s offices around the world, but they’re also used in laboratories, janitor’s carts, and home cleaning services. These are gloves built for incidental contact with chemicals and contaminants. Once they’ve come in contact with a chemical or bacteria, they should be thrown away and replaced. You should also avoid flames and abrasive surfaces, as they offer minimal protection in these areas. Latex-style gloves are used in industries that need to maintain a high level of dexterity and sensitivity.

2. Fabric Gloves

The most common type of glove for general projects, fabric gloves are ideal for any work that doesn’t require a super high level of protection. Thin, flexible, and lightweight, fabric gloves prevent minor issues including scrapes and splinters. They won’t protect you against punctures, major cuts, or burns. If you’re a painter or a landscaper, these gloves are a perfect choice.

3. Coated Fabric Gloves

A step up from regular fabric gloves, coated fabric gloves offer additional protection against cuts, punctures, and chemicals. PVC, nitrile, and neoprene are among the most popular types of coating. Choose your coating based on the job you’re doing. PVC is best for mining operations as well as oil and gas industries; nitrile is recommended for automotive industries and machining; and neoprene is ideal for cleaning, draining, and transferring dangerous chemicals.

4. Kevlar Gloves

Like bulletproof vests, Kevlar gloves are a lightweight solution that offers robust hand protection. Resistant to most cuts and punctures, kevlar is commonly used as stitching or lining to enhance other kinds of gloves. You’ll find welders and other industrial applications using kevlar-enhanced gloves to protect their hands from heat and cuts.

5. Leather Gloves

While leather gloves aren’t the perfect choice for working in extreme heat, they do offer great grip, insulation, and durability in hot and cold temperatures. Far thicker than a fabric glove, you get more protection from cuts and reasonable burn protection when in good condition. Be wary of shriveling and drying and replace them if you see any cracking. Synthetic and cow leather are frequently used by welders with additional wool or cotton lining inside the glove for insulation.

6. Rubber Gloves

If you’re looking for a very flexible glove that can resist all sorts of chemicals, butyl rubber gloves are the number one choice. This type of rubber is non-absorbent and resists everything from alcohol and ketone-based chemicals to acids, bases, and rocket fuel. You also don’t have to worry about hot or cold temperatures, corrosion, or oxidation. 

There are different thicknesses of butyl gloves that make them compatible with jobs that need dexterity as well as jobs that require extra protection. Discover every thickness from the ultra-light five millimeters to super thick 14 millimeters.

7. Vibration-Resistant Gloves

You may not have thought that repetitive vibrations are a risk, but EHS Today found that HAV (Hand-Arm Vibration) is an occupational hazard for those using powered hand tools on a regular basis. Whether it’s hydraulic or battery-powered, you need protection from your tools with special gloves. 

Vibration-resistant gloves can reduce the impact of extended exposure to vibrating tools by absorbing much of the energy that would be transferred to your hands and arms. From those who work in the fabrication and automotive industries to roadwork and construction, find impact-resistant gloves for your team.

8. Puncture-Resistant Gloves

Specially woven to deflect sharp tools, any industry that has a high level of manual cutting benefits from puncture-resistant gloves. Construction workers, food service employees, and warehousing staff use these gloves specifically to resist punctures and cuts.

9. Aluminized Gloves

If you’re working in heat, aluminized gloves offer the best protection. Resistant to high temperatures up to 2,000º F, you can find these types of gloves in foundries, laboratories, and welding facilities. Most of the time, these heat-resistant gloves are often supplemented with wool lining and kevlar thread.

Your Responsibility

As a team leader, warehouse manager, or employer, it’s up to you to know the risks and supply your workers with the right type of glove for their job. Identify the hazards they face and explore your options to ensure you’re getting the best protection.

All pictures: Image Source

Jordan McDowell is a writer and content strategist. He specializes in manufacturing and often covers workplace safety, but also enjoys writing about the automotive industry and the great outdoors.

ESOPs as an Exit Strategy for Owners of Construction Companies

By Chris Hirschfeld, ASA, MBA, Director of Exit Planning, Somerset CPAs and Advisors

Running a profitable business is a daily challenge for most business owners. Finding an exit strategy is a challenge that every business owner will eventually face. It is especially true for many in the construction industry. If you want to sell to management, how often do they have the funds to buyout the owner? If you want to arrange bank financing for a transaction, what impact will this have on your bonding? If you want your children to remain in the business, how willing is a buyer to honor that request? If you consider selling to a competitor, what is the risk of sharing proprietary information with your competition? What if the deal doesn’t go through? How often do Private Equity firms even look at construction companies for their portfolio of acquisitions?

The list of issues above is exactly why more and more construction companies are turning to ESOPs as an exit strategy. What is an ESOP? It stands for Employee Stock Ownership Plan. It is a vehicle by which business owners can sell their stock to the employees through an ESOP Trust. The ESOP Trust buys the shares for the benefit of all employees. Not only does it provide an exit strategy for the current owners, but it also creates an ownership mentality among all the employees because all employees will have an economic interest in the success of the business. 

An ESOP is a qualified retirement plan. Therefore, it is governed by the same rules that apply to other retirement plans such as 401k or SEP or SIMPLE IRA’s. ESOP plan documents will specify eligibility, vesting, and retirement ages, just like other retirement plans. The accumulation of value inside an ESOP grows tax deferred, just like all other retirement plans. Employees only pay ordinary income tax when they withdraw their funds from their ESOP account just like any other retirement plan. When employees retire, or leave the company for any reason, however, they must sell their stock back to the ESOP. The stock never leaves the company. The terminated employee may roll their cash proceeds into their IRA or 401k if they wish to further defer taxes on their ESOP account after retirement. The one thing that makes an ESOP unique among retirement plans is that, by law, ESOPs are allowed to hold employer stock as its only security. 

When setting up an ESOP, current owners must sell their stock at fair market value, as derived by an independent appraiser. This is a market-based price which gives owners a value comparable to what the current market would bear. Often, “fair market value” is a higher price than formulas many companies have in place within their buy-sell agreements. Once the owners sell their shares to the ESOP, the ESOP Trust will allocate shares to employees over several years. This creates a long-term incentive for employees to remain with the company. It is why ESOPs have become such a wonderful retention tool. It is like a “golden handcuff” for all employees. If they leave, employees lose their unvested balance and also walk away from the potential of future share allocations. 

One of the biggest benefits to ESOP-owned companies is that management does not have to change. Corporate governance does not have to change. The day-to-day operations do not change. The company remains local. Headquarters will not be moved out of state. The local community benefits when companies don’t sell to out-of-state companies. There is one additional benefit to the owners who sell their shares to the ESOP. If they remain employees after selling their stock, they may also participate in the ESOP to build additional wealth.

In today’s tight labor markets, ESOPs are especially attractive. Imagine being in competition for new hires. Your company can offer not only salary, wages, and a 401k plan, but also a second retirement plan that the company contributes to (not the employee). How many employers offer two retirement plans? This will make your company more attractive to potential new hires in a tight labor market.

What types of companies make good ESOP candidates? ESOP candidate companies should be profitable, with stable earnings and some growth potential. If the company has the capacity to borrow money, the selling shareholders can get more cash up front as part of the deal. Owners who want to keep the company local will find ESOPs attractive. If you already have an employee-ownership culture, your employees will treasure the ESOP benefits.

ESOPs are only available to corporations. LLCs and Partnerships would have to convert to either an S-Corporation or C-Corporation before forming an ESOP. One of the advantages of a C-Corporation that forms an ESOP is that the sellers can get tax deferral on their capital gains if the ESOP buys 30 percent or more of the ownership. One of the advantages of an S-Corporation forming an ESOP is that income taxes on corporate profits can be eliminated. S-Corporations do not pay a corporate income tax. Corporate income passes through to the shareholders who pay the tax. If an S-Corporation is owned 100 percent by an ESOP, the corporate income tax liability passes through to the ESOP, which is a qualified retirement plan. Qualified retirement plans pay no income tax. Therefore, a 100 percent ESOP-owned S-Corporation is a tax-free entity. Imagine not having to make income tax distributions equal to 30 to 35 percent of the corporate income each year or in quarterly installments. That cash can be retained and used for other corporate purposes (pay down debt, bonuses, acquisitions, etc.).

The company will incur added expenses to an ESOP. ESOPs require a trustee, an independent business appraiser (who appraises the stock each year for the benefit statements), and legal counsel. Additionally, a record-keeper/third-party administrator must be retained to administer the plan, file necessary annual tax forms and produce the employee ESOP benefit statements. The corporate income tax savings alone, however, can more than offset the increased operating costs for an ESOP.

In summary, there are several reasons an ESOP might be an attractive exit strategy for business owners in the construction industry. It allows the owners to sell their stock at a market-based price. It provides a means by which the owners can sell the company, but the company remains local. The ESOP has a built-in mechanism for buying shares when employees leave the company, so there is always a market for minority interests. ESOPs help build an ownership mentality among employees. An ESOP provides a second retirement plan for all employees that builds value over an employee’s career. This additional retirement benefit will make your company unique and creates an attractive recruitment and retention tool. ESOP-owned S-corporations can eliminate corporate taxes altogether, creating a unique source of cash flow unavailable to most other corporations. If you have a business that you would like to turn into a legacy, an ESOP just might be that vehicle. 

Why Recruit Veterans

Beyond Workforce Development, Workforce Solutions

by Julie Davis,

Association of Equipment Manufacturers Director of Work Force Development.

Are you tired yet of pulling from the same employment pool? If the answer is yes, then you are ready to explore the new world of veteran recruitment. If you think that you’ve tried it, it doesn’t work for you or there is no one to recruit in your area, then you simply aren’t up to date. 

Why recruit Veterans?

Many companies find veterans to be more productive employees with lower turnover rates when compared to their nonveteran counterparts. Additionally, their past military background can give veterans distinctive capabilities and perspectives that can add insight and diversity to your team’s problem solving. Employers can also qualify for up to $10,000 in federal tax credits per veteran. 

There are multiple state and federal organizations that exist to connect employers with veterans. Many of them work with veterans before they leave active duty to ensure they have skills that can plug immediately into the workforce. Furthermore, just because you may not have a military base located near you is no longer a reason to exclude veterans from your search. Organizations looking to place veterans into employment include working to get veterans back to their home states if that is what they are looking for. Taking a few extra steps could mean providing a veteran the opportunity to truly come home.

Veteran Retainment

Approximately 40 percent of veterans leave their first job out of the military within a year of being hired. The transition can be challenging but there is some common sense, yet very real ways that you can position your company to retain your veterans. 

First, define what your motivation is to hire veterans. Then identify what skills, attitudes and experience would benefit your organization the most. (If you are not sure, simply find your best current employee in that position and identify their skills, attitudes and experiences.) 

Decide what a successful veteran hiring program for your organization looks like. Are you looking for just one or is this going to become a regular program? 

Identify the service branches, ranks and occupational specialties you might like to target. Don’t know? That’s okay because there’s multiple ways to connect. You could reach out to your state or local Veteran’ office and talk with someone or here are some great website you can connect with:

Understand the basics
https://content.iospress.com/articles/work/wor01987
(A brief introduction to military workplace culture)  
https://www.va.gov/VETSINWORKPLACE/docs/em_termsLingo.asp 
(Common Terms) 

Difference between the branches 
https://www.va.gov/VETSINWORKPLACE/mil_structure.asp

Difference between officer and enlisted ranks 
https://www.va.gov/VETSINWORKPLACE/docs/em_rank.asp

Civilian to Military Occupation Translator
https://www.careeronestop.org/BusinessCenter/Toolkit/civilian-to-military-translator.aspx?frd=true

While building your veteran’s program, don’t forget to tap into your secret weapon – any veterans you are currently employing. Get their thoughts about skills and areas of service that might be a good fit. Don’t forget to ask them what about working for your organization might appeal to a veteran. After all, they have stayed with you! 

There are multiple employment organizations that will connect you with veterans. A few of my favorite include:

Hero’s MAKE America (Provides 10 weeks accelerated skills training for manufacturing)http://www.themanufacturinginstitute.org/Initiatives/Military-and-Veterans/Heroes-MAKE-America/Heroes-MAKE-America.aspx 

Hire a Hero
https://www.hireheroesusa.org/hire-a-veteran/ 

Bradley-Morris, Inc. (Specifically for Skilled Technicians)
https://www.bradley-morris.com/military-recruiting-firms/field-service-technician/

Orian Talent
https://www.oriontalent.com/military-job-seekers/enlisted-technicians/

Lastly, don’t forget that to retain your veteran, you may want to consider having some supports in place to make their transition smooth. Connect them to existing veterans in your workplace, let them know about opportunities for professional growth and advancement, and consider engaging current veterans in creating the program to ensure its effectiveness. 

Veterans who are coming out of service where they have worked with heavy equipment may be a perfect fit for the construction, agriculture, mining, utility or forestry industry sectors. Don’t let taking a few extra steps keep you from your next best hire.