The willful violations arise from the company permitting grain dust — which is ten times more explosive than coal dust — to build up, using compressed air to remove dust without first disengaging ignition sources, jogging (repeatedly starting and stopping) inside bucket elevators to free gears choked by grain, using inappropriate electrical equipment within an explosive working environment, and neglecting to ensure that employees had used fall protection when working from heights.

“The deaths of these six workers could have been prevented had the grain elevator’s operators addressed hazards that are well known in this industry,” said Secretary of Labor Hilda L. Solis. “Bartlett Grain’s disregard for the law led to a catastrophic accident and heartbreaking tragedy for the workers who were injured or killed, their families and the agricultural community.”

The serious violations involve a lack of proper preventive maintenance of grain handling equipment; inadequate emergency and job hazard training for employees and contractors; and unsound cleaning practices that failed to prevent grain dust accumulation.

The citations to Bartlett Grain, which is based in Kansas City, Mo., carry $406,000 in proposed fines.

“OSHA standards save lives, but only if companies comply with them,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “Bartlett Grain has shown what happens when basic safety standards are ignored, and this agency simply will not tolerate needless loss of life.”

A willful violation is one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

During the last 30 years, there have been over 500 explosions in grain facilities across the United States, killing more than 180 people and injuring over 675. Grain dust is the main source of fuel for explosions in grain handling. This dust is highly combustible and can burn or ignite if enough becomes airborne or accumulates on surfaces that are contacted by an ignition source (such as an overheated motor or sparks from welding or brazing operations). OSHA standards require that both grain dust and ignition sources be controlled in grain elevators to prevent potentially deadly explosions. For more information on grain handling, visit http://www.osha.gov/SLTC/grainhandling/index.html.

The citations to Bartlett Grain Co. L.P. can be viewed at http://www.osha.gov/ooc/citations/Bartlett_issued_04122012.pdf

If you have suffered from a work injury, need help recovering workers compensation benefits from your L&I claim, or need representation to appeal a denied L&I claim, an L&I Lawyer at Emery Reddy can represent your case. Every day our experienced Employment Attorneys and Seattle Workers Compensation Lawyers help Washington workers collect the full compensation and benefits they deserve, and provide legal counsel to those who have been required to undergo an independent medical exam by the Department of Labor and Industries.

At a carwash in an industrial district of Queens, NY, immigrants and other workers are preparing to open the next front in New York City’s labor battles.

Carwash employees are often paid him less than the minimum wage, and are routinely cheated out of overtime pay. Moreover, workers are not given protective gear even though they use caustic cleaners that burn their eyes and sinuses. Community organizers report that these kinds of wage and overtime violations are widespread among carwashes.

So during the past few weeks, and under the guidance of immigrant advocates, New York carwash employee Adan Nicolas has been briefing his co-workers in basic labor law and in the fundamentals of organizing. Away from bosses, similar conversations have been taking place at carwashes around New York City.

“We’re all ready to fight for our rights and have a dignified place to work, and not to be abused like we are today,” Mr. Nicolas said.

In the coming days a partnership of community and labor organizations plans to introduce a citywide campaign to reform the carwash industry. Union advocates hope to seize this momentum by unionizing carwash workers throughout the city.

“This is a real partnership between community organizations and organized labor to try to tackle these problematic working conditions,” said Andrew Friedman, co-executive director of Make the Road New York, an advocacy group that is leading the coalition with New York Communities for Change, another advocacy group, and support from the Retail, Wholesale and Department Store Union.

A related campaign in Los Angeles succeeded in collective bargaining agreements between several carwash companies and their workers.

Yet the New York campaign will be an uphill battle. About 1,600 carwash workers are scattered across 200+ locations, and many of those are under individual ownership. This means that each company would need to undergo a separate organizing effort. In addition, many workers are undocumented immigrants who may be reluctant to speak out for fear of being fired (wrongful termination) or being identified by immigration authorities.

Carwash managers and owners claim that they pay and treat their employees fairly, and have pledged to fight the unionizing effort.  “We’re going by the law,” said the manager at Queensboro Car Wash in Long Island City, who declined to give his name.

This claim, however, is disputed by the organizing coalition (known as “Wash New York”), which interviewed 90 carwash workers from carwashes all around New York City, and learned that two-thirds reported to make less than the state-mandated minimum wage of $7.25 per hour.

A typical schedule for carwash workers is at least a 60-hour workweek; yet a majority receives no overtime pay as required by law when employees put in more than 40 hours. Those who did get overtime pay often earned far less than the required time-and-a-half rate. Moreover, rest breaks and lunches went unpaid or were extremely brief.

According to the labor organizers, not a single worker in the survey had received paid sick days, and only one reported that he had been offered a health plan.

Equally troubling is the lack of workplace safety. Most workers claimed that they are not given appropriate protective equipment or training for handling the caustic cleaning products used at carwashes. Some workers even use chemicals that burn holes through their clothing, the organizers said.

Mr. Nicolas admitted his misgivings about possible repercussions – including being fired – but he added that the effort was “worth it because we’re suffering so much injustice.”

Assessments of the industry by “Wash New York” strongly correspond to findings from a state investigation in 2008.  That year, 60 state inspectors visited 84 carwashes in New York and reported $6.5 million in underpayments to 1,380 workers.  The vast majority of New York City carwashes (up to 80%) had violated minimum wage and overtime laws.  State labor commissioner Patricia Smith called the industry “a disgrace.”

That investigation resulted in millions of dollars in fines, litigation and promises of compliance by owners.

Then in 2010, the department announced a settlement of $2 million with the owners of an Upper Manhattan carwash that had failed to pay minimum and overtime wages.

Facing the recent rumbling of organization among workers, owners themselves are now mobilizing to resist the unionization effort. “We would never sign with the union,” said the manager at Whitestone Car Wash in Queens. “I like things the way they are.”

If you are involved in a wage or overtime dispute, contact a Seattle Employment Attorney at Emery Reddy. We also represent clients who need a Labor & Industries Attorney or Workers’ Compensation Lawyer.

Peggy Klaus, a consultant to executives and organizations on leadership and communication, was recently invited to give a lecture for the Disabled Students’ Program at the University of California, and wrote about initial feelings of anxiety and discomfort at the prospect of speaking to an audience made up solely of people with disabilities.

After admitting her misgivings to Paul Hippolitus, the director of the program and a 30-year veteran of the Office of Disability Employment Policy of the federal Labor Department, she learned that her response was “Perfectly normal.”  As Hippolitus pointed out, “In this culture, nearly everyone is uncomfortable with disability” – including people with disabilities as well. Constantly subject to a public that stares at them or reacts with unease, people with disabilities can be made to feel highly self-conscious and develop a lack of self-confidence.

Students at the Berkeley School of Disabilities are no exception. This is the reason, according to Hippolitus, that many forego graduate school, and as a result delay opportunities to enter the work force.

Today, more than 20 years following the passage of the Americans With Disabilities Act, the percentage of full employment among the population of people with a disability is only 17.9 percent. This compares with 63.7 percent for Americans without disabilities.

What might account for this lack of progress? It has been suggested that some employers fear that “reasonable accommodation” of the disabled will require extra time, resources and money. The federal Job Accommodation Network, however, shows that theses fears are baseless; many accommodations cost nothing or run just a few hundred dollars.

Rather than waiting for society to change, Mr. Hippolitus has developed a course on Professional Development and Disability, which focuses not only on the principles and practices of disability employment but also on strategies for navigating the 21^st century American workplace.

For nearly any job candidate, excelling in the interview can be crucial to landing a job.

It is unlawful for employers to ask about an applicant’s disability. However, when disabilities are visible, they may still have concerns. Since applicants themselves are under no restrictions, many opt to simply address employers’ potential reservations head-on — an approach that is addressed in the Berkeley course. This not only diffuses those lingering misgivings, but also opens a space to talk about the skills required to manage a disability, like strategic planning and time management.

Peggy Klaus shared some of these hypothetical exchanges:

“To start with a line like, ‘You may be wondering how I could manage to travel as part of the job,’ means that job applicants can elaborate on how they manage the rigors of travel, given their limitations. In addition to talking about their work and academic experience, they can offer up ‘brag nuggets’ and stories — talking about the preparations they needed for a trip to Europe, for example, or to make an 8 a.m. class.”

If more Americans began to view disability as both a challenge and an asset, we would make some important steps toward fully utilizing the job skills of all workers.

If you have experienced disability discrimination or any other form of employment discrimination, contact an employment attorney at Emery Reddy today.

For legal advice and assistance with your L&I claim, contact a Seattle Workers’ Compensation Attorney at Emery Reddy. If the Department of Labor & Industries has required you to complete an Independent Medical Exam, we urge you to consult with an attorney prior to attending the IME. Finally, if your claim has been rejected, it is in your best interest to work with an experienced L&I attorney to appeal denied L&I claims.

Pereda v. Brookdale Senior Living Communities, Inc. addressed the question of whether a first-year employee – in other words, a worker who had not yet reached eligibility for FMLA leave – had job protection when she requested leave that would begin after she became eligible (i.e., her anniversary date).  The appeals court responded in the affirmative, giving protection from termination to a worker who did not technically meet the statute’s definition of an “eligible employee.” This decision makes the Eleventh Circuit the nation’s first to rule on the issue.

The plaintiff in Pereda began employment at Brookdale Senior Living Communities in October 2008. Then in June 2009 announced she was pregnant; at this time she also notified her employer that she planned to request FMLA leave after giving birth to her child in late November 2009.  Under the FMLA, an “eligible employee” must be employed for at least 12 months and complete at least 1,250 of service during the previous 12-month period.  The plaintiff had not yet gained the status of an “eligible employee” in June 2009 when she announced her intention to take FMLA leave later that year.  Nor was she an eligible employee in September 2009 when Brookdale managers fired her. But the appeals court re-interpreted the definition of “eligible employee,” reasoning that because the worker would have been an eligible employee at the time she had planned to take leave, she was protected from termination under the FMLA.  The court wrote that concluding otherwise “would violate the purposes for which the FMLA was enacted,” creating “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.”

The Eleventh Circuit Court’s most persuasive reasoning, perhaps, appears when citing a section of FMLA that mandates “employees” (but not necessarily “eligible” employees) to provide their employers with a minimum of 30 days’ notice before taking anticipated leave based on an upcoming birth.  The court determined that an alternate decision in this case would entrap some employees in a lose-lose situation where they had to choose between complying with the notice requirement (but subjecting themselves to risk of retaliatory termination), or waiting for the anniversary date to arrive (but NOT complying with the notice requirement).

The expanded definition of “eligible employee” resulting from this case generates many unanswered questions about the circumstances under which employees are protected under FMLA.  Hunton Employment and Labor Perspectives imagined the following scenarios:

• What if an 11-month employee says during Thanksgiving week that he is “leaning toward” having surgery on his trick knee after the New Year, likely keeping him on FMLA leave for a month or so?
• What if a just-hired employee says in January of Year 1 that she and her husband have applied for adoption of a Russian child, a lengthy process that will, if they are approved (a questionable proposition), necessitate their going overseas for a couple of months in the middle of Year 2.  What if the individual had shared this during the pre-hire process?
• What if an 11-month employee shares that she and her sister are deciding which of them will take three months off from work next year to care for their mother, who is scheduled at that time to move out of a nursing home?  What if the employer elects to terminate the employee the following week, and the mother dies the week after that?

If you or someone you know is the victim of wrongful termination, workplace discrimination, or retaliatory practices, contact a Seattle Employment Attorney for assistance with your case.  Our L&I attorneys also represent employees who seek workers compensation benefits or who need any other assistance with work injury claims through the Department of Labor and Industries.

Read here for more news on FMLA, sick leave and employment law.

The rule was enacted in response to a bill passed by the Washington State Legislature, which requires L&I to implement protections that abide by recommendations in the National Institute of Occupational Safety and Health reports of 2004 and 2010.

L&I will host a public meeting to discuss the creation of a Hazardous Drugs Advisory Committee, as well as model programs that support employers as they implement the rule.  This event will take place at the L&I Tumwater building from 2 – 4 pm on Wednesday, January 25^th. The Auditorium is located at:

Department of Labor & Industries Auditorium
7273 Linderson Way SW
Tumwater, WA 98501-5414

When the Hazardous Drugs rule goes into effect it will cover all health care settings where workers come into contact with these hazardous drugs. Some of those substances have been identified as cancer-causing agents, while others are known to cause irreversible harm to health care workers – even at low-level exposure rates.

Under this new rule, “health care facilities” will be defined as sites where a health care provider administers medical care to patients.

The rule includes minimum requirements for advancing a hazardous drug control program.  Using existing hazard assessments, employers will establish programs to reduce or eliminate employee exposure to hazardous substances.

If you or someone you know has suffered a work-related illness due to exposure to hazardous substances, contact an Employment Attorney at Emery Reddy for help recovering damages.

Visit OSHA’s Winter Storms Web page.

During winter months, employees who work in snow storms experience increased rates of injuries, as shown by increased L&I claims during these extreme conditions. OSHA’s new online tool offers tips and guidelines for how Washington employers and workers engaged in clean-up and recovery operations can identify hazards inherent in snow storm conditions, and take necessary steps to ensure worker safety while carrying out their jobs in wintry conditions. The webpage includes best practices and directions for workers whose activities may lead them to clear heavy snow around workplaces or from rooftops; encounter downed power lines; travel on slick or icy roads; or restore power after storms.

Hazards related to work in winter storm conditions include:

• Workers being struck by falling objects (icicles, tree limbs, utility poles, etc)
• Vehicle accidents on icy roadways
• Carbon monoxide poisoning
• Dehydration, hypothermia or frostbite
• Exhaustion from overexertion
• Back injuries – or even heart attacks – while removing snow
• Slips & falls on slippery walkways
• Electrocution from downed power lines and objects in contact with them
• Burns from fires caused by energized line contact or equipment failure
• Falls from rooftop snow removal, or while working on aerial lifts or ladders
• Roof collapse under excess snow weight
• Injuries from improperly operated chain saws and power tools, or from improperly attempting to clear jams in snow blowers

In response to these winter hazards and the work-related injuries that often occur in such condition, OSHA details the most effective measures for minimizing winter storm hazards. These include:

• Approaching all power lines as if they were energized, and staying completely clear of downed or damaged power lines
• Ensuring all powered equipment is properly guarded and disconnected from power sources before cleaning or performing maintenance
• Using extremely caution on and around surfaces that are weighed down by snow or ice
• Shoveling only moderate to small amounts of snow at a time, and using appropriate lifting form to avoid back injuries
• Keeping walking surfaces clear of snow and ice; use salt where appropriate
• Employers should provide and ensure the use of fall protection measures, and maintain ladders in good working condition
• Remaining in one’s vehicle in the case of roadway emergency. Occupants should not leave a vehicle unless help is visible within 100 yards
• Wearing reflective uniforms or clothing, as well as face and body protection
• Clearly marking work zones
• Using engineering controls, personal protective equipment and safe work practices to minimize the length of exposure to cold.

The new Winter Storms Web page provides links to OSHA guidelines, as well as advice from Federal Emergency Management Agency, the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, the National Safety Council and other relevant organizations.

As OSHA explains on its website: “Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.”

The OFCCP’s prospective rule would bolster affirmative action requirements set forth in Section 503 of the Rehabilitation Act of 1973, and obligate federal contractors / subcontractors to give equal employment opportunities to qualified workers with disabilities. The potential regulatory changes also include particular actions that contractors would be required to take in recruiting, training, record keeping and policy dissemination — much like those already required to foster workplace equality for minorities and women.

In an announcement released by the Labor Department, Secretary of Labor Hilda L. Solis stated that the proposed rule represents “one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act. President Obama has demonstrated a commitment to people with disabilities. This proposed rule would help federal contractors better fulfill their legal responsibility to hire qualified workers with disabilities.”

While Section 503 policies have already been in place for decades, people with disabilities are presently experiencing an unemployment rate of 13 percent, which is one and a half times higher than those without disabilities. Even more alarming is the data released last week by the Bureau of Labor Statistics, which confirms blatant disparities for working-age Americans with disabilities, with 79% completely outside the labor force, compared to 30% of those without disabilities.

“For nearly forty years, the rules have said that contractors simply need to make a ‘good faith’ effort to recruit and hire people with disabilities. Clearly, that’s not working,” said OFCCP Director Patricia A. Shiu. “Our proposal would define specific goals, require real accountability and provide the clearest possible guidance for employers seeking to comply with the law. What gets measured gets done. And we’re in the business of getting things done.”

Setting a 7% hiring goal for hiring Americans with disabilities provides a tool for contractors to assess the effectiveness of various affirmative action efforts. The proposed rule would also improve requirements for data research and documentation to enhance accountability. Additionally, it would institute annual self-reviews of employers’ outreach and recruitment efforts, and include a new requirement for contractors to post job openings to broader pools of qualified candidates.

Learn more about Disability Benefits through the Labor and Industries website.

If you believe you are the victim of employment discrimination, contact a Seattle employment attorney for help with your case. Emery Reddy also represents Washington workers with L&I claims and workers compensation claims.

Acoustic trauma can manifest as a loss of hearing range or hearing level, and in more serious cases workers can suffer from severe permanent nerve damage.  Oftentimes a worker will not know they have an impaired ability to detect normal levels of sound until their condition is quite serious and damage is irreversible.

Are you exposed to dangerous levels of noise in your work place?

 A number of factors can cause inner ear damage, such as the pitch, level, and length of exposure to noise. The quality of ear protection like headsets or ear plugs—as well as the consistency of using them—also effects rates of workplace hearing loss. Repeated exposure to only 85 decibels of sound is enough to damage a person’s hearing. This comes as alarming news to many workers, since the average power tool emits about 100 decibels, and 120 decibels of sound is enough to cause permanent hearing loss after only a couple hours of exposure.  A worker without ear protection standing next to someone using a nail gun is bombarded with up to 140-170 decibels – enough noise to result in immediate, permanent inner-ear damage.

If you sometimes need to shout at your worksite in order for another party to hear you, or if you have to strain to hear some standing nearby who’s talking at a normal level, it is likely that noise levels at your job are causing hearing loss.

Common Warning Signs of Occupational Hearing Loss

Workers exposed to intense noise at work should watch for these indications of potential hearing loss:

• distorted, muted or muffled sounds
• decreased ability to hear high-pitched sounds
• roaring or ringing effects in one or both ears
• trouble understanding others when they are talking at a normal conversational level

 Washington Hearing Loss Attorneys

Hearing loss can impact almost every dimension of someone’s life.  Washington workers whose are experiencing impaired hearing or permanent hearing loss due to occupational noise levels may be entitled to workers’ compensation benefits.  Emery Reddy’s Washington Workers Compensation attorneys have successfully litigated a large number of hearing-related cases for workers with L&I claims and appeals.  Please contact our firm today for a free consultation on your workplace injury.

In an October 21 press release, the U.S. Department of Labor’s Bureau of Labor Statistics reported an encouraging decline in workplace injuries and illnesses. Across much of the U.S., workers compensation claims are down in many industries, particularly construction. Among private employers, nonfatal accidents declined to a rate of 3.6 cases for every 100 full-time workers in 2009, down from 3.9 per 100 in 2008. BLS also announced a drop in the total number of cases in the U.S., which declined from 3.7 million in 2008 to 3.3 million in 2009.

“While the reported decline in workplace injuries and illnesses is encouraging, 3.3 million workplace injuries and illnesses are 3.3 million too many,” said Secretary of Labor Hilda L. Solis. “No worker should fear being injured or made sick for a paycheck.”

Solis emphasized the importance of thorough and accurate reporting in the case of workplace injuries. Solid record-keeping for workers compensation claims, she stated, can “serve as the basis for employer programs to investigate injuries and prevent future occurrences.” The Labor Secretary indicated that most employers recognize this obligation and do their best to correct conditions in which worker injuries occur, but pointed out that too many still do not. “That is why my department’s Occupational Safety and Health Administration is aggressively working to ensure the completeness and accuracy of injury data compiled by the nation’s employers. We are concerned about the widespread existence of programs that discourage workers from reporting injuries, and we will continue to issue citations and penalties to employers that intentionally under-report workplace injuries.”

Solis concluded the press release by reiterating the importance of adherence to workers’ compensation guidelines and regulations that prevent workplace injury. “Too many Americans suffer each year from preventable injuries or illnesses they received while on the job. Even in these difficult economic times, we must keep in mind that no job is a good job unless it’s a safe job.”

Under the care of Dr. Orn Eliasson, the worker was diagnosed with a 54% bilateral pulmonary impairment, which Dr. Eliasson determined using the 5th Edition AMA Guide.  Yet a second physician, Dr. Albert Rizzo, also attended to the same patient, and rated a 24% permanency based on the 6th Edition AMA Guide.

During his July 2010 hearing the claimant was no longer working.  His employers maintained that worker safety measures from 1986 should have provided him with adequate protection from asbestos exposure beyond that date—meaning, according to the logic of their argument—that the employee’s disability benefit quotient should have been based on his average weekly wage in 1986 for determining his present disability award.

The worker’s complicated employment history has made it difficult to determine all the factors involved in his asbestos exposure.  He was last employed by Catalytic in 1982.  The worker then moved to Raytheon, where he worked from 1984 until 1997.  After retiring from Raytheon, the claimant took a part-time position with Delaware City Refinery, Raytheon (from 1997 to 1998), and Washington Group (from 2000 to 2001).  The workers also performed services for several other companies for short spells between 2004 and 2007.

In 2008, the worker started to develop acute respiratory symptoms.  It was at this point that Dr. Eliasson initially diagnosed him with asbestos-related lung disease, and designated a 54% bilateral lung impairment rating based on the AMA Guide 5th edition.  Dr. Eliasson testified that there is a 10 to 20 year-latency period for developing asbestosis following exposure, and so in his medical opinion, the worker’s contributory exposure likely occurred between 1982 and 1997.  However, Dr. Albert Rizzo also examined the injured worker, and in a testimony on behalf of the various employers,  he argued that the harmful exposures were “most likely cumulative, making it difficult, if not impossible, to pinpoint when the harm occurred.”   Drawing on the guidelines of the 6th Edition AMA Guide, Dr. Rizzo gave the patient’s bilateral lung impairment a 24% rating.

Ultimately, the Industrial Accident Board deferred to the prevailing doctrine of “the last injurious exposure rule” and upheld Dr. Eliasson’s testimony that the latency period for manifesting asbestos-related disease is 10-20 years.  The Board cited the 1988 case “Lake Forest School District v. DeLong” (WL 77665), arguing that when an injurious exposure is cumulative over the period of successive employment, the final employer is liable for the entire award.  In the case in question, the Board regarded the final year of the claimant’s fulltime employment (which fell between 1996 and 1997) as his last injurious exposure, and disregarded any asbestos exposure from 1997-2007 as outside the latency period.  Under these measures, Raytheon was found liable for the occupational illness.

When it calculated the worker’s award for permanent impairment, the Board declined to base its decision on the 5th Edition AMA Guide, and partially adopted Dr. Rizzo’s rating.  Using the 6th Edition, the Board determined that Dr. Rizzo’s rating corresponded with a Class 3 disability, which falls in the range between 24% to 40% impairment.  Yet the Board found Dr. Rizzo’s rating of 24% “low,” and awarded 30% to each lung.

If you think you may be suffering from asbestos exposure or another work-related injury or illness, please contact a workers’ compensation attorney at Emery Reddy.  We will fight to ensure that you receive the full workers’ compensation benefits to which you are entitled.