Audit, Compliance and Risk Blog

Do you ever discuss work with co-worker friends on Facebook or other social media sites? Or, if you’re an employer, do you worry about what your employees may post about work on their Facebook pages—even when they do so from home after hours?

2012 has been a relatively quiet one for environmental health and safety (EH&S) compliance personnel.  Fewer new laws are enacted in election years, because some or all of the lawmakers are busy running for election or re-election.                                       

Response to Criminal Violations in the Deepwater Horizon Disaster

On November 28, the Environmental Protection Agency (EPA) announced that it was temporarily suspending BP from all new contracts with the U.S. government. EPA acted two weeks after BP agreed to plead guilty to 14 criminal counts, including manslaughter, obstruction of Congress and other criminal charges stemming from the 2012 Deepwater Horizon blowout and oil spill. BP also agreed to pay $4.5 billion in penalties. Federal agencies have authority to issue temporary suspensions and longer-term “debarments” to parties that violate criminal laws (over three thousand were issued in the last fiscal year). EPA is the lead agency doing so for violations of national water and air laws. The effects on BP could be significant: BP is currently the largest lease-holder in deep water portions of the Gulf of Mexico, and in 2011 was the largest supplier of fuels to the U.S. military. Its existing contracts are not affected, but it is ineligible for new ones (for example, the company has already had to skip a round of deep water leasing by the Department of the Interior).

While we watch negotiators in Doha, Qatar continue to struggle to find international agreement on effective climate change minimization measures, it's useful to look at one part of the planet where aggressive actions are underway.  No, not the U.S. federal government, which took time out of preparations for “fiscal cliff” negotiations to pass a law on November 27 empowering the Department of Transportation to prohibit U.S. airlines from participation in the European Union’s Emissions Trading Scheme (Public Law No. 112-200).  This month's prime example of action is California, which just held its first auction of greenhouse gas (GHG) emission allowances to inaugurate a statewide cap-and-trade program.

The Foreign Corrupt Practices Act (FCPA) of 1977 prohibits U.S. companies from making bribes or other “corrupt payments” to foreign officials for the purpose of obtaining or retaining business. Concerns that this U.S. attempt to mediate its companies’ overseas activities might prove quixotic—and potentially disadvantaging—to American competitiveness have abated (although not disappeared) since the Organization for Economic Cooperation and Development (OECD) promulgated its “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.” As of November 2012 the OECD Convention has been ratified by all 34 OECD member countries, and five others as well.

Domestic violence is a widespread problem with serious consequences for the victims, their families and their workplaces as well. In 2005 a national telephone survey by the Corporate Alliance to End Partner Violence found that 44% of the employed U.S. adults surveyed reported having personally experienced the effects of domestic violence in their workplace, and 21% identified themselves as victims. The same survey reported that 38% of respondents were “somewhat” to “extremely” concerned for their own safety when they learned that one of their co-workers was being victimized.

The presence of “hazardous” materials in your workplace can trigger a wide variety of environmental health and safety requirements and hazardous waste regulations.  The Occupational Safety and Health Administration (OSHA) and state worker protection agencies issue standards to protect workers during occupational handling and storage.  The US Environmental Protection Agency (EPA) and state environmental agencies issue requirements governing the management of hazardous wastes, and emissions to a variety of environmental media (air, water and land).

Do you know what happened to any paints, coatings and surface preparation materials left over after the last project at your facility?

Is your organization one of the many with policies restricting employees’ use of social and other electronic media? If so, you need to consider last month’s National Labor Relations Board (NLRB) decision, finding that Costco’s policy violates the National Labor Relations Act (NLRA). This decision is another recent example of a regulator’s interpretation of ambiguous employer policies in ways that protect employee rights by using the employer’s ambiguity against it – and reinforce that employment law best practices require clarity and narrow drafting.

When an employer becomes concerned that an employee may be incapable of performing his or her job, one response is formal evaluation of that employee’s “fitness for duty (FFD).” Although most cover physical abilities, referrals are also made for psychological FFD evaluations, to determine whether an employee has a psychological impairment that makes him or her unable to perform effectively and safely. These may be triggered when an employee is exhibiting signs of psychological or emotional stress, including those that manifest in hostile or threatening behaviors, or in other behaviors that lead co-workers, or the employer, to be concerned for their safety.