Gravel2Gavel Construction & Real Estate Law Blog

Yesterday, the California Department of Industrial Relations issued a News Release, Newsline No. 2014-48, confirming that Cal/OSHA will be “focusing on safety compliance at construction sites in the San Francisco Bay Area, following a recent series of fatal accidents in the region.” Cal/OSHA investigators are being deployed to inspect construction worksites throughout the coming weeks to determine whether employers have taken adequate measures to identify safety hazards and prevent injuries to workers.

Fall protection will be among the items Cal/OSHA inspectors will be checking during the inspections, including railings on buildings and personal safety equipment. Its teams will also examine trench safety, equipment safety and potential site hazards such as power lines. Employers are warned that, if Cal/OSHA inspectors find a lack of protection or a serious hazard, the employer will be ordered to correct the violations and work at the construction site will be stopped until the hazards are abated. Employers who fail to comply with Cal/OSHA safety regulations should also expect to be cited.

Cal/OSHA identified four recent incidents in California that illustrate the safety hazards on construction sites:

• On May 18, a construction worker was killed when the train bridge he was dismantling in downtown Riverside collapsed, crushing the worker
• On May 20, a worker on a San Mateo project tumbled 9 feet from a wall sustaining fatal head injuries
• On May 20, in San Diego, a worker near the top of 22-foot rebar column was killed when the column fell on him
• On May 21, a worker at a residential project in San Jose fell to his death from a three-story building

Cal/OSHA reportedly is currently investigating all four incidents.

It reminds everyone that falls are the leading cause of death for construction workers and encourages everyone to take part in National Safety Stand-Down week — June 2-6. The Stand-Down should be used by employers as an opportunity to talk with workers about fall hazards and prevention and to emphasize the importance of fall protection and other safety measures at construction sites.

Additional Source: CalOSHA, National Safety Stand-Down for Fall Protection; CalOSHA, Safety & Health Fact Sheet, Fall Protection in Construction; Stand Up For Safety, Join in the Safety Stand-Down June 2 – 6; Cal/OSHA, Safety and Health Protection on the Job

The Department of Transportation recently launched a national campaign to stop texting while driving and other distracted driving hazards. In turn, the Occupational Safety and Health Administration (OSHA) recently issued a reminder to employers that it is their legal responsibility under the Occupational Safety and Health Act to safeguard drivers at work — “[e]ach 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.” OSHA warns that it is prepared to act quickly if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity,” confirming that it will investigate and issue citations and penalties where necessary to end this practice.

OSHA recommends employers send a clear message to workers and supervisors that the employer neither requires nor condones texting while driving by:

• Prohibiting texting while driving — declare vehicles “text-free zones” and emphasize that commitment to their workers, customers, and communities
• Establishing work procedures and rules that do not make it necessary for workers to text while driving in order to carry out their duties
• Setting up clear procedures, times, and places for drivers’ safe use of texting and other technologies for communicating with managers, customers, and others
• Incorporating safe communications practices into worker orientation and training
• Eliminating financial and other incentive systems that encourage workers to text while driving

OSHA provides some startling statistics regarding distracted driving:

• Distracted driving crashes killed more than 3,000 people and injured 416,000 in 2010
• Reaction time is delayed for a driver talking on a cell phone as much as it is for a driver who is legally drunk
• More texting leads to more crashes — with each additional 1 million text messages, fatalities from distracted driving rose more than 75%
• People under the age of 20 are involved in more fatal crashes due to distractions than any other age group
• Studies show that drivers who send or receive text messages focus their attention away from the road for an average of 4.6 seconds – at 55 mph, this is equivalent to driving the length of a football field blindfolded

As of May 2014, the Insurance Institute For Highway Safety reports that:

• Talking on a hand-held cellphone while driving is banned in 12 states (California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Jersey, New York, Oregon, Washington, and West Virginia) and the District of Columbia
• The use of all cellphones by novice drivers is restricted in 37 states and the District of Columbia
• Text messaging is banned for all drivers in 43 states and the District of Columbia. In addition, novice drivers are banned from texting in 4 states (Mississippi, Missouri, Oklahoma, and Texas)

Be safe!

Additional Resources: OSHA, Distracted Driving: No Texting; U.S. Department of Labor, Occupational Safety & Health Administration, Distracted Driving; Insurance Institute For Highway Safety, Distracted Driving (Summary of State Laws)

Photo: Mike Kline – Creative Commons

The U.S. Department of Labor’s National Safety Stand-Down to Prevent Falls in Construction is June 2 – 6, 2014. A “Safety Stand-Down” is a voluntary event for employers to talk directly to employees about safety. The purpose of this year’s Stand-Down is raise awareness of preventing “Fall Hazards” and to reinforce the importance of “Fall Prevention.”

OSHA reports that “[f]atalities caused by falls from elevation continue to be a leading cause of death for construction workers, accounting for 269 of the 775 construction fatalities recorded in 2012.” It believes that those deaths were preventable. It reported that “[f]all prevention safety standards were among the top 10 most frequently cited OSHA standards, during fiscal year 2012.” OSHA has posted on its website numerous fall prevention publications.

Additional Resources: OSHA, Fall Prevention Training Guide; OSHA, Falling Off Ladders Can Kill: Use Them Safely; OSHA, Fall Protection in Residential Construction Fact Sheet; U.S. Department of Labor, Stand-Down Frequently Asked Questions

Nothing strikes fear in a person like a black widow spider sighting, in part, because its venom is reportedly 15 times that of a rattlesnake’s. Although most bite victims do not suffer serious damage (except that children, elderly, and physically infirm individuals are at greater risk for serious injury), a bite should not be ignored.

The female black widow spider is normally shiny black with a red hourglass marking on the underside of the abdomen. Late spring is mating season for black widow spiders. A female will produce approximately 200 eggs that hatch after about 30 days. It takes approximately 3 months for a black widow spider to reach adulthood. Keep an eye out for black widow spider nests in the early summer and more adult spiders in the early fall.

Black widow spiders are nocturnal and, thus, are active at night. However, be alert, they like outdoor areas (e.g., woodpiles, rubble piles, under rocks, hollow stumps, and rodent burrows, privies, sheds and garages) as well as some indoor areas (e.g., undisturbed, cluttered areas in basements and crawl spaces). Wear a long-sleeved shirt, hat, gloves, and boots when in areas prone to black widow spiders. Also inspect and shake out clothing and shoes before getting dressed, and consider using insect repellants on clothing and footwear.

Symptoms of a Black Widow Spider Bite

• The bite may be painful or not
• The bitten area may have one or two bite marks with local swelling
• Pain usually progresses from the bite site, and it may eventually progress to the abdomen and back
• Severe cramping or rigidity may occur in the abdominal muscles and, in some cases, it may mimic symptoms of appendicitis or gallbladder problems
• Symptoms may include nausea, vomiting, fainting, dizziness, chest pain, profuse perspiration, tremors, labored breathing, restlessness, increased blood pressure and fever
• Pain from the bite will usually persist for the first 8-12 hours
• Symptoms may continue for several days

Treatment of a Black Widow Spider Bite

• Clean the bite area with soap and water
• Apply ice to the bite area to slow absorption of the venom
• Elevate and immobilize the area bitten
• Capture the spider, if at all possible, so that the type of spider bite can be confirmed
• Seek medical attention immediately — The decision to seek emergency care should be made early and, if the person who was bitten by a black widow spider has more than minor pain or has whole-body symptoms, seek care at a hospital’s Emergency Department and, if symptoms are severe, call 911 for emergency medical transport so that evaluation and treatment can start en route to the hospital
• If you have a heart condition or other heart problem, you may need to be hospitalized

Be safe!

Additional Resources: OSHA Fact Sheet, Protect Yourself! Workers may be exposed to black widow spider; livescience, Black Widows: Facts & Information

Photo: peasap, Taken Jul. 22, 2007 – Creative Commons

On May 15, the Mississippi Supreme Court, in Christmas v. Exxon Mobil Corporation, ruled that Exxon was entitled to summary judgment in a case where its neighbors complained that the property (formerly operated as a waste disposal site) was home to many large alligators, making their lives untenable and decreasing the value of their property. The record indicated that the alligators had been imported onto the site from Louisiana by the previous owner. After noting that there was no evidence that Exxon brought the alligators to its property or that it was restraining the alligators in any way, the Court held that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable and, therefore, Exxon was not responsible for these wild alligators. At least two other states have concluded that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Quantum Workplace leveraged employee survey data from “nearly 5,000 organizations and 400,000 employees that participated in the Best Places to Work program” to identify cities where employees were most satisfied with employee recognition. Information was collected about employees’ perception of recognition frequency on items such as, a pay increase, access to new learning or training materials, granted time off, and praise from senior leadership.

It found that the top 10 cities are:

1. Huntsville, AL – 73% Satisfied Employees
2. Nashville, TN – 69% Satisfied Employees
3. Austin, TX – 68% Satisfied Employees
4. San Antonio, TX – 68% Satisfied Employees
5. Washington, D.C. – 68% Satisfied Employees
6. Atlanta, GA – 67% Satisfied Employees
7. Charlotte, NC – 67% Satisfied Employees
8. Orlando, FL – 67% Satisfied Employees
9. Raleigh, NC – 67% Satisfied Employees
10. Tampa, FL – 67% Satisfied Employees

Quantum Workplace’s 2014 Recognition Trends Report examines more details on employee recognition, including examining employees’ preference of 11 different types of recognition and the frequency at which each were received; it segments its findings across eight demographics, including gender, position level, age, and race.

Additional Source: Forbes, The Top 10 Cities for Employee Engagement; The Best Places to Work in the Federal Government 2013 Rankings

Today, Pillsbury attorneys Tom Hill, Daryl Shapiro, Tim Walsh and Rebecca Carr Rizzo published their advisory Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations. The Advisory discusses the recent oral argument in In United States ex rel. Barko v. Halliburton, filed in 2005 in the D.C. Circuit, during which DC Circuit panel (Judges Griffith, Kavanaugh and Srinivasan) expressed some support for the various Kellogg Brown & Root entities’ and the Halliburton Company’s position that their Code of Business Conduct investigations of the alleged misconduct was protected under the attorney-client and attorney work product privileges.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Tom Hill, Daryl Shapiro, Tim Walsh or Rebecca Carr Rizzo, the authors of this blog.

In mid-May, Cal/OSHA issued its second high heat advisory this year, reminding all employers “to protect their outdoor workers from heat illness by taking precautionary measures.” Cal/OSHA confirmed that it will be inspecting “outdoor worksites in industries such as agriculture, construction, landscaping, and others throughout the heat season” for compliance with California’s heat illness prevention regulations.

CalOSHA reminds employers that these regulations require all employers to protect outdoor workers by taking these basic steps:

• Train all employees and supervisors about heat illness prevention
• Provide plenty of cool, fresh water and encourage employees to drink water frequently
• Provide a shaded area for workers to take a cool down recovery break
• Prepare an emergency heat illness prevention plan for the worksite, with training for supervisors and workers on what to do if a worker shows signs or symptoms of heat illness

Special “High Heat” procedures are also required when temperatures reach 95 degrees:

• Observe workers for signs and symptoms of heat illness
• Remind workers to drink water frequently
• Provide close supervision of workers in their first 14 days of employment (to ensure acclimatization)
• Have effective communication systems in place to be able to call for emergency
• assistance if necessary

“When temperatures spike, employers are required to make sure that workers have enough water, shade and rest even if they don’t report any symptoms associated with heat illness,” said acting Cal/OSHA Chief Juliann Sum. “Preparation and easy access to water, rest and shade are the most effective ways to ensure that outdoor workers stay healthy.”

Additional Resources: DIR, Heat Illness Prevention and Heat Illness Prevention etool; CalOSHA, Cal/OSHA Issues First High Heat Advisory of 2014 as Temperatures Rise Across the State (Apr. 30, 2014) and Water. Rest. Shade; U.S. Dept. of Commerce, Local weather forecast by “City, St” or zip code

On January 23 and February 3, House Bill 2297 and Senate Bill 2051 were introduced, proposing to amend Title 62, Chapter 6, Part 5 of the Tennessee Code to expand home improvement contractor licensing and other requirements to the entire state, to clarify the meaning of owner, contractor, and commissioner, and to remove certain exemptions in the home improvement contractor law. If signed into law, HB 2297/SB 2051 will take effect July 1, 2014.

Present law defines a “home improvement contract” as an agreement between a “contractor” and an owner for the performance of home improvement. HB 2297/SB 2051 clarify that such a contract is between a home improvement contractor and owner. A “home improvement contractor” is anyone, other than a bona fide employee of the owner, who undertakes or offers to undertake or agrees to perform any home improvement for the owner, whether or not the person is licensed or subject to the licensing requirements. “Owner” will be defined as “(A) Any homeowner, tenant or any other person who orders, contracts for or purchases the home improvement services of a home improvement contractor; or (B) The person entitled to the performance of the work of a contractor pursuant to a home improvement contract.” Present law specifies that no home improvement contractor’s license is required for a retail clerk, clerical employee, salesperson or “other employee of a licensed home improvement contractor”. HB 2297/SB 2051 specify that this exemption applies to employees who do not perform home improvement work, amending from the current law “an individual who performs labor or services for a home improvement contractor or subcontractor for wages or salary” is exempt for the licensure requirements.

HB 2297/SB 2051 will also require a home improvement contract to contain information regarding each home improvement contractor who will perform work pursuant to the contract, amending from the current law reference to certain home improvement contractors being exempt from licensure due to the county exclusions under the contractor provisions.

Additional Resources: HB 2297; SB 2051; TN Gen. Assem. Fiscal Review Committee Fiscal Note SB 2051 – HB 2297 (Mar. 7, 2014)