Tag Archives: Epstein Becker & Green

OSHA Targets Data Centers For Electrical Safety Enforcement

Written By:  Eric J. Conn

OSHA is signaling a major departure from its position on acceptable exceptions to the Lockout/Tagout requirements in the agency’s electrical safety standards. Historically, employers have been permitted to conduct electrical maintenance near energized parts in data centers that host critical business operations (i.e., operations which must stay live 24/7), under an “infeasibility” exception to the general rule that electrical equipment must be deenergized and locked out before maintenance is permitted. A series of recent enforcement actions suggests this exception may no longer be available to data center operators.

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OSHA Launches New Nursing Home National Emphasis Program

By Julia E. Lloyd and Eric J. Conn

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”).  In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.”  Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient  handling), exposure to bloodborne pathogens (e.g., needlestick injuries), workplace violence (e.g., assaults by patients or others), and other hazards commonly found within nursing homes and residential care facilities (e.g., exposure to hazardous chemicals or infectious diseases).

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GHS & HazCom: 10 Things Employers Must Know About OSHA’s New Hazard Communication Standard

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

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How to Choose a FINRA Arbitration Panel

By: John F. Fullerton III

This is the first of a series of posts on practice and procedure in employment-related arbitrations before FINRA.  Check back often for future posts, subscribe to The Bellwether, or Follow @bellwetherblog on Twitter so you don’t miss any!

More than one lawyer has been burned by a FINRA arbitration panel that seemed ideal on paper, but then, at the hearing, just did not “get it.”  Conversely, a panel that initially looks troubling sometimes does a great job at the hearing and gets the decision right (i.e., in your favor, of course). And there are plenty of times when the arbitrators perform exactly as their experience and background would lead you to expect.  Is there really any proven method of selecting the “best” arbitrators for an employment-related (industry) case  before FINRA (as opposed to a customer dispute, which we do not address here), or might you just as well hang the list of arbitrators you receive from FINRA on your office wall and throw darts at it?

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New York’s Highest Court Upholds Oral Promise of Guaranteed Bonus

By:  John F. Fullerton III

The New York Court of Appeals recently upheld a jury verdict in favor of a brokerage firm employee who claimed that his employer breached an oral promise (and violated New York wage law) when it failed to pay him a guaranteed bonus of $175,000, to be paid at the end of his first year of employment.  The discussions with the hiring manager regarding compensation were not put in writing.  Nevertheless, the employee subsequently signed an acknowledgment in the formal employment application that  “compensation and benefits are at will and can be terminated, with or without cause or notice, at any time” at the discretion of the employer or the employee.  He was discharged after less than two years of employment, and had not been paid the full $175,000 he claimed to be owed.

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The Clock is Ticking on Companies to Protect Themselves When Whistleblowers Bring Complaints

Guest Post By: H. David Kotz

H. David Kotz is a Managing Director at Gryphon Strategies, a full-service investigation firm, which he joined in January 2012 after serving for over four years as the Inspector General for the SEC.  He was a guest speaker at Epstein Becker & Green’s March 7, 2012 breakfast briefing, 2012’s Key Issues for Financial Services Employers.

The head of the Securities and Exchange Commission’s (SEC’s) Whistleblower program reported on March 14, 2012 that the SEC Whistleblower program has been receiving a continuous volume of complaints since the program began in August 2011.  From August 12, 2011 through September 30, 2011, the SEC whistleblower program received 334 complaints (an average of 7 per day) and according to the SEC, since that time frame, the volume has continued to be steady.  The SEC is also reporting that in nearly all of the whistleblower complaints they have received, the whistleblowers have notified their employer’s internal compliance program of their claims.  Sean McKessy, the head of the SEC’s Whistleblower program, stated on March 14, 2012, that in all but a handful of complaints, the whistleblowers have reported making the notification of the fraud internally.

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Something to Consider When Deciding Whether to Compel FINRA Arbitration

By:  Dena L. Narbaitz

Here is the scenario:  your company, a FINRA Member Firm, terminates a broker for “violation of company policies” and reports this as the reason for termination on the broker’s Form U-5 (Uniform Termination Notice for Securities Industry Registration).  The broker then sues your company in state court asserting several claims, including defamation for the language contained on his Form U-5.  Your company thinks there is a good legal basis to have the broker’s claims dismissed as a matter of law before the case is tried.  Should your company litigate the case in the former employee’s chosen forum (state court) or file a motion to compel FINRA arbitration?

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FINRA’s $1 Million Dollar Fine of Merrill For Dodging Arbitration of Claims

By: Lauri F. Rasnick

FINRA recently announced that it fined Merrill Lynch, Pierce, Fenner & Smith (“Merrill”) one million dollars for failing to arbitrate claims with employees. See January 25, 2012 News Release.    The disputes at issue arose out of promissory notes executed by Merrill employees in connection with the Bank of America Corporation (“BOA”) acquisition.  After the BOA acquisition, Merrill created a program called the Advisor Transition Program (“ATP”).  Pursuant to this program, Merrill was to pay particular registered representatives lump sum retention payments structured like loans and subject to the execution of promissory notes.  The promissory notes had to be repaid, in part or whole, depending on whether a registered representative was terminated, failed to make payments, or filed for bankruptcy, among other things.   In connection with the ATP, Merrill paid out approximately 2.8 billion to 5,000 registered representatives. 

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Negotiating FINRA U5 Termination Language Can Later Disqualify an Employee’s Attorney

By: John F. Fullerton III

A recent New York state court decision granted a fairly unique petition to disqualify the attorney for a group of former employees from representing them in an intra-industry arbitration at FINRA. Why?  Because the lawyer had turned himself into a fact witness by negotiating the termination explanation in the U5 notice of two of the employees. The decision raises an interesting question about whether the same logic could be applied in a U5 expungement hearing at FINRA when there have been discussions between counsel about the U5 language, regardless of whether or not the employee ultimately “accepts” the U5 language the employer reports.

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Seventh Circuit “Puzzled” by OSHA’s “Work-Related” Recordkeeping Requirement

By Casey M. Cosentino

On March 20, 2012, the U.S. Court of Appeals for the Seventh Circuit vacated an ALJ’s decision penalizing Caterpillar Logistics Services, Inc. for allegedly failing to record an employee’s work-related” musculoskeletal disorder (“MSD”) on the Company’s OSHA 300 log.  Caterpillar Logistics Services, Inc. v. Sec’y of Labor, No. 11-2958 (7th Cir., Mar. 20, 2012).  This case is significant because it stamps back (at least temporarily) an effort by OSHA to expand the meaning of “work-related” in the context of ergonomic injuries and OSHA Injury & Illness Recordkeeping.

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