RMSC Safety Sentinel: August 2012

OSHA General Duty Clause: What Is It, How Can It Be Used?

In cases in which a particular hazard isn’t addressed by any OSHA standard, the General Duty Clause, Section 5(a)(1), may be cited.

The GDC says:

“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

How does OSHA define “recognized hazards”? In its Field Operations Manual (FOM) for inspectors,
OSHA lists three ways in which a hazard qualifies as recognized:

  • Employer recognition: This can be established by evidence of actual employer knowledge of a hazardous condition.
  • Industry recognition: A hazard is recognized if the employer’s industry is aware of its existence.
  • Common sense recognition: The FOM states, “Hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it.”

OSHA has said it will use the GDC in several areas in which it doesn’t have a standard, including:

  • heat stress
  • workplace violence
  • ergonomics, and
  • combustible dust.

One specific example: OSHA used the GDC against Wal-Mart in 2009 after one of its employees was trampled to death by uncontrolled holiday crowds. There is no OSHA regulation for controlling crowds at retail establishments.

Some other cases in which OSHA has used the GDC:

  • trainers killed or injured by animals
  • a worker struck by a train, and
  • employees in a hospital psychiatric ward injured by violent patients.

For one serious violation of the GDC, OSHA can issue a maximum $7,000 fine. A willful violation of the GDC carries a maximum $70,000 fine.

GDC fines can add up. GDC citations are in the top 10 highest assessed penalties OSHA levies.

In 2012, an administrative law judge upheld a GDC citation against SeaWorld Orlando for the death of a trainer pulled under water by a killer whale. OSHA administrator David Michaels said the
SeaWorld decision validated the agency’s right to use the GDC. “This is one more example that

OSHA can use the General Duty Clause in most situations where we don’t have a standard,” Michaels said. “There are many hazards we don’t have standards for.”

Employee Involved in Vehicle Crash—Is the Employer Liable?

The issue of employer liability for motor vehicle crashes, especially in distraction-related accidents, is heating up as more of these cases make it through the legal system.

Having a policy can not only put employees on notice that you’re serious about phone use, it can even potentially protect you in a lawsuit.

The National Safety Council (NSC) emphasizes, however, that policies that only comply with relevant national or state rules can leave employers vulnerable to liability and costs.

In a white paper titled Employer Liability and the Case for Comprehensive Cell Phone Policies, NSC discusses the legal theory that an employer may be held accountable for negligent employee actions if the employee was acting within the scope of employment at the time of the crash.

The term “acting within the scope of employment” has been defined broadly in a number of cases. Consider the following examples:

  • A jury found that a driver and the corporation that owned the vehicle were liable for $21.6 million because testimony revealed that the driver might have been talking with her husband on a cell phone at the time of the fatal crash.
  • An off-duty police officer was texting moments before a deadly crash. Because he was driving a police cruiser, his employer was held liable for $4 million.
  • An employee was involved in a fatal crash as he drove to a non-business-related event on a Saturday night to make cold calls. The company did not own the car or the phone, but the plaintiff claimed that the business was liable because it encouraged employees to use their “car phones” and lacked a policy governing safe cell phone use. The employer settled the suit for $500,000.

The NSC white paper stresses that to help protect against employer liability a cell phone policy has to be more than words on paper. Employers should be careful not to promote a workplace culture in which employees feel they need to use cell phones while driving.

It’s important to point out that employers can never be completely protected in the event of a lawsuit. But Dallas-based attorney Todd Clement argues that they stand a better chance if they can show that they implemented a total-ban policy, enforced the policy, educated employees, and monitored compliance.

Protecting Your Organization’s Nonpublic Information

Company leaders probably know best how long it takes to form strong, mutual relationships with customers, and how quickly those relationships can dissolve. Imagine how quickly these relationships could evaporate if clients, or sponsors discovered that their nonpublic information was compromised from a breach that originated from within your organization. This breach can result in identity theft, which is America’s fastest growing white-collar crime. And with today’s ever-changing technology, including online access to the global marketplace and personal data files, this is becoming a concern and even greater risk.

The following are examples of how a company can experience a devastating breach of security:

  • A Non-Profit employee is reviewing the giving history of a large contributor, but leaves their desk to pick up data from a printer down the hall.
  • The fiscal year has ended and it’s time to toss old files in the dumpster outside the building.
  • Copies of customer payment checks were left behind on the copy machine.
  • An employee left your organization two weeks ago, but they still have password access to online data and their building security card was never turned in.
  • Your organization has a formal Privacy Policy, but employees haven’t been trained on it yet.
  • A company laptop was stolen from a locked car or left unattended in public “just for a moment.”
  • The flash drive was left behind on the key chain of the company vehicle while being serviced.
  • Information was faxed or given over the phone to unauthorized recipients.

It is important to remember to take extra precautions when handling people’s nonpublic and personal data, especially with today’s technological advances.

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For additional information on these topics or for Loss Prevention assistance, contact:

Paul Fox pfox@rmsc.com or (502-708-3111)

RMSC has exercised due and customary care in producing this newsletter but has not independently verified information provided by others. No other warranty, express or implied, is made with regard to the content of this newsletter. Therefore, RMSC assumes no liability from any loss resulting from errors, omissions or misrepresentations made by others. The use of this information by third parties shall be at their own risk and RMSC accepts no duty of care to any such third party.

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