Audit, Compliance and Risk Blog

Is your employer hiring "temp" workers this summer—to serve tourists, meet cascading production deadlines, tend crops, or maybe just to fill in while permanent workers take vacations? Most employers recognize that occupational safety and health laws throughout North America assign them an Employer's General Duty to protect their own employees from workplace hazards. Some don’t remember that this duty also applies to shared employees, and even to other employers’ employees while they’re at your workplace. This month, the US Occupational Safety and Health Administration (OSHA) is re-emphasizing ongoing efforts to ensure protections for temporary workers ("temps"), extending the Temporary Worker Initiative it started in 2013.

In the run-up to the 2015 federal election, Canadian business owners may start getting unsolicited emails from political parties inviting them to fundraising dinners. The ones that come from the Conservative Party of Canada may be especially aggravating. After all, it was a Conservative government that brought in Canada’s Anti-Spam Legislation (CASL)—a law that is costing Canadian businesses millions to implement but that few believe will put any kind of dent in phishing scams and spam.

The Occupational Safety and Health Administration (OSHA) has revised a guide that identifies eight mechanical motions and eight hazardous actions that present possible amputation hazards. The guide also sets forth steps employers can take to reduce these hazards. The material is appropriate for anyone responsible for the operation, servicing, and care of machines or equipment: employers, employees, safety professionals, and industrial hygienists. Topics covered in this document include hazard analysis, awareness devices, and hazardous energy (lockout/tagout), and safeguarding machinery. An excerpt follows:

One of the many national anti-discrimination laws administered by the US Equal Employment Opportunity Commission (EEOC) is the Pregnancy Discrimination Act of 1978 (PDA). PDA prohibits discrimination against women on the basis of “pregnancy, childbirth or related medical conditions.” EEOC receives about 6,000 complaints alleging this form of sex discrimination each year, which amounts to 6-7% of all complaints it receives. Last month EEOC issued its first stand-alone Enforcement Guidance for its staff to address PDA and related issues under the Americans with Disabilities Act (ADA), superseding discussions in the agency’s general Compliance Manual.

Since the US Supreme Court affirmed in 2007 that the Clean Air Act (CAA) provides the Environmental Protection Agency (EPA) with authority to regulate carbon dioxide (CO₂) and other greenhouse gases (GHGs), EPA has pursued a growing set of regulatory initiatives. In each, EPA has attempted to fit GHGs into statutory and regulatory programs originally designed for more conventional pollutants – and the entities it targets have sued the agency claiming the stretch to GHGs exceeds EPA’s authority. Each court decision has adjusted the contours of EPA’s CAA authority, legitimizing some stretches and vacating others.

On June 23, President Obama issued a Presidential Memorandum to federal agencies, specifying steps they must take to enhance workplace flexibility for federal workers, and specifying timelines for the federal Office of Personnel Management (OPM) and each federal agency to complete those steps. The Memorandum establishes OPM as the hub of these activities, with assignments to create guidance, synthesize information being provided by other federal agencies, and provide ongoing inter-agency advice. The Memorandum is careful not to create any new rights for federal employees, but it is intended to ensure that agencies expand their interpretations and applications of those rights to the maximum extent feasible.

Investigation of the 2010 spill at Marshall, Michigan, the largest on-land spill in US history, underlines the reality that a Facility Response Plan (FRP) is more than a government-required document—an inadequate document or plan can lead to environmental and economic disaster. Owners and operators of onshore pipelines must review and update FRPs every five years from the date of last submission or last approval, and whenever new or different operating conditions arise that would affect the plan. (49 CFR 194.121 Response Plan Review and Update Procedures). PHMSA recently released two Advisory Bulletins reminding operators what it requires in an FRP and listing five of the most common reasons for it to reject an FRP.

The Directorate of Construction, Occupational Safety and Health Administration (OSHA) has a website that provides original investigations of collapses and other incidents. Many of the incidents resulted in one or more worker fatalities, and most of them resulted in multi-million dollar property loss, lawsuits, or settlements. Each investigation was performed at the request of an OSHA field office or State Plan OSHA as part of an enforcement inspection.

Section 10(b) of the Securities Exchange Act of 1934 prohibits use of “any manipulative or deceptive device” in connection with purchases or sales of securities. Since its adoption, this provision has provided SEC with an important enforcement tool. Beginning in 1975, the US Supreme Court also empowered aggrieved shareholders to use this Section to support private lawsuits against alleged violators (Blue Chip Stamps v. Manor Drug Stores). The substantive and procedural contours of this private right have continued to evolve in the subsequent four decades, as courts address arguments by plaintiffs and defendants. In 1988, the Supreme Court ruled that plaintiffs who buy or sell shares through an “efficient market” are entitled to a presumption that they relied on that market’s price, not knowing that the market was tainted by manipulative or deceptive information (Basic, Inc. v. Levinson).

Expect little relief from flood of unwanted electronic messages, experts say.