In the latest issue of The Wright Toolbox:

• • OSHA Top 10 Violations for 2018 – read now
  • Work Environment for MBE Subcontractors is Important – read now

OSHA Top 10 Violations for 2018

By Michael A. Stover

At the 2018 National Safety Congress in Houston, Texas, Patrick Kapust, OSHA’s Deputy Director, Directorate of Enforcement Programs, announced the OSHA Top 10 Most Cited Violations in fiscal year 2018.  This list tells employers several things: (1) where OSHA is focusing its enforcement attention; (2) where employers/employees are not enforcing the regulations and (3) where employers should focus their attention on training, safety and compliance going forward.  The list is as follows:

1. 1. Duty to provide fall protection (29 CFR 1926.501): 7,270 violations. The duty to provide fall protection has been OSHA’s top citation for many years.  According to Director Kapust, common violations include failure to provide fall protection near unprotected sides or edges and on both low-slope and steep slope roofs.
   2. Hazard communication (29 CFR 1910.1200): 4,552 violations. Hazard communication has been in the number-two spot for several years. Common deficiencies include lack of a written program, inadequate training, and failure to properly develop or maintain safety data sheets (SDSs).
   3. Scaffolds—general requirements (29 CFR 1926.451): 3,336 violations. Common violations included lack of proper decking, failure to provide personal fall arrest systems and/or guardrails where required, and failure to ensure that supported scaffolds are adequately supported on a solid foundation.
   4. Respiratory protection (29 CFR 1910.134): 3,118 violations. Failure to establish a program, failure to perform required fit testing, and failure to provide medical evaluations were among the most frequently cited issues.
   5. Lockout/tagout (29 CFR 1910.147): 2,944 violations. Many employers cited under this standard failed to establish an energy control procedure altogether, while others were cited for failing to provide adequate employee training, failure to develop machine-specific procedures, and failure to use lockout/tagout devices or equipment.
   6. Ladders (29 CFR 1926.1053): 2,812 violations. Common deficiencies included failure to have siderails extend 3 feet (ft) beyond a landing surface, using ladders for unintended purposes, using the top step of a stepladder, and ladders with broken steps or rails.
   7. Powered Industrial Trucks (29 CFR 1910.178): 2,294 violations. Violations commonly addressed deficient or damaged forklifts that were not removed from service, operators who had not been trained or certified to operate a forklift, and failure to evaluate forklift drivers every 3 years as required.
   8. Fall protection—training requirements (29 CFR 1926.503): 1,982 violations. Commonly cited issues include failing to provide training to each person required to receive it, failure to certify training in writing, failing to ensure that training is provided by a competent person, and failing to train the proper use of guardrails and personal fall arrest systems.
   9. Machine guarding (29 CFR 1910.212): 1,972 violations. Violations included failing to guard points of operation, failing to ensure that guards are securely attached to machinery, and failure to properly anchor fixed machinery.
   10. Personal protective and lifesaving equipment—eye and face protection (29 CFR 1926.102): 1,536 violations. The final violation is a newcomer to OSHA’s top 10 list and replaces electrical wiring methods (29 CFR 1910.305), which took the number 10 spot for FY 2017. Commonly cited issues included failing to provide eye and face protection where employees are exposed to hazards from flying objects; failing to provide protection from caustic hazards, gases, and vapors; and allowing employees to wear combinations of prescription and safety eyewear that compromise the protective qualities.

Injuries on the job can be devastating for an employee and the employer.  Compliance with OSHA guidelines and regulations can go a long way toward protecting one of the company’s most valuable assets – its employees.

Work Environment for MBE Subcontractors is Important

Government contractors are all too familiar with the contractual requirements for subcontracting a portion of the work to minority owned businesses (MBE’s).  On a federal and local scale, numerous requirements mandate that the prime contractor maintain those minority contractors and their level of work through the end of the job.  For those subcontractors who find that they are mistreated as the project progresses, a recent decision by a federal court provides a valuable example of a legal weapon available to a wrongfully terminated MBE subcontractor and a caution for prime contractors seeking to terminate a MBE subcontractor.

In Annuity Funds Operating Engineers Local 15 v. Tightseal, (S.D.N.Y. August 14, 2018), the general contractor Jadlau, terminated one of its MBE subcontractors, Tightseal Construction, on a government project.  Tightseal sued Jadlau under 42 U.S.C. § 1981 claiming Jadlau had terminated it in “bad faith” and because of racial animus.  Tightseal’s allegations that Jadlau’s superintendents had displayed racial harassment by using racist names and slurs were sufficient allegations to allow the case to proceed forward.  Jadlau moved to dismiss the complaint, but the district court found that Tightseal’s claims could continue since it alleged sufficient facts displaying a hostile racial situation and was a “disadvantaged African-American Company” and that Jadlau had “subjected it to race discrimination.”

Prime contractors seeking to terminate MBE subcontractors must ensure that they are acting within the confines of the contract.  Further, the prime contractor must also ensure that termination for performance reasons will not be challenged because of unanticipated reasons outside of the contract.  Employers have long been subjected to liability for the harassment which is endured by their employees and/or by their customers and this case demonstrates that contractors on public jobs must ensure that the same protections are provided to MBE’s working on the jobsite.  This means that the prime contractor not only must educate its employees on proper working etiquette but also that it must appropriately investigate and address any claims from an MBE regarding mistreatment outside of the contract.

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