May, 2018 
Conditions on the Roof May be Hotter than you Think
As we approach the summer months, now is a good time for roofing contractors to schedule a heat illness training session with all employees. Or, if you don't already have a Heat Illness Prevention Program in place for managing exposure to heat on the job, now is the time to implement one. Depending on a worker's age, health, and conditioning, physically strenuous work outdoors in excessive heat and humidity may put that worker at risk of suffering from cramping, fainting, heat exhaustion or stroke, and in extreme cases, even death. Roofing contractors, therefore, need to make sure they are protecting their employees from the heat.
OSHA does not have a rule regulating heat-stress hazards. The lack of a standard, however, has not stopped OSHA from citing employers for failing to have a heat-illness prevention program in place. Just one month ago, on March 13, 2018, OSHA issued a Section 5(a)(1) General Duty Clause citation to a Florida roofing contractor following the death of an employee who suffered from heat stroke who was working on a residential re-roofing project in direct sunlight on a day with a reported wet-bulb temperature of 86.2º F and a heat index of 98.4º F. The serious citation, with proposed penalty of $12,934, alleged that the Florida roofing contractor did not furnish a place of employment free from recognized hazards likely to cause death or serious physical harm due to conditions being such that workers were at risk of developing serious heat-related illnesses such as heat cramps, heat exhaustion, and heat stroke.
The Florida OSHA inspector outlined acceptable methods of abating the heat-stress hazard, which primarily involved establishing a heat stress management program that incorporates guidelines from OSHA and NIOSH's publication "Protecting Workers from Heat Illness"[1] and OSHA's Safety and Health Topics Page on Occupational Heat Exposure.[2] The OSHA inspector noted that in implementing an acceptable heat illness prevention program, employers should, among other things:
-       provide employee training on recognizing the signs and symptoms of heat stress, the health effects associated with heat stress, and methods of preventing heat illnesses;
-       implement a worker acclimatization policy for new or returning employees who are not accustomed to working in hot environments by gradually increasing their workload or providing more frequent breaks to help them build up a tolerance for hot conditions;
-       develop a system for how to determine whether a heat hazard exists for employees based on weather, temperature, humidity, employee clothing, and workload;
-       implement a heat alert program;
-       establish an employee screening program compliant with both the Americans with Disabilities Act and the Age Discrimination in Employment Act to identify health conditions that could be aggravated by exposure to heat stress; and
-       establish procedures for controlling heat-stress hazards on the job including: (1) implementing a work/rest regimen based on the daily weather; (2) rescheduling work during cooler periods of the day such as early morning or in the evening; (3) providing water and encouraging employees to drink 5 to 7 oz. every 15-20 minutes rather than relying on employee's thirst; (4) providing cooling equipment such as cooling vests or bandanas; (5) ensuring employees have access to shaded or air conditioned areas for breaks.
Notably, the above abatement measures closely follow findings of Administrative Law Judge ("ALJ") Carol A. Baumerich's February 23, 2015 decision in the case of Secretary of Labor v. A.H. Sturgill Roofing, Inc. involving a commercial roofing firm out Dayton, OH, who received a two-item serious citation with an $8,820 proposed penalty following the death of a temporary employee on August 1, 2012. The citation alleged that Sturgill had not adequately implemented a heat illness prevention program in violation of the OSH Act's General Duty Clause and that it had not provided adequate training to its employees for heat-related hazards in violation of 29 C.F.R. § 1926.21(b)(2).   ALJ Baumerich affirmed both citation items as serious and assessed a total penalty of $8,820. Sturgill appealed the decision to the Review Commission, where it is currently pending review. While the decision is not a final order, the A.H. Sturgill case provides additional examples of what types of heat-illness prevention measures OSHA may expect a roofing contractor to have in place to be in compliance with the general duty clause.
In particular, the ALJ highlighted that she found Sturgill had failed to: (1) have an acclimatization plan in place for temporary employees; (2) communicate to the staffing agency that employees should wear light-colored clothing; (3) implement a formalized work-rest regimen that accounted for the weather conditions of the day on a one-hour cycle and which also factored in the age and acclimatization of individual employees; (4) implement a specific, formalized hydration policy requiring workers to drink 5-7 oz. of water every 15-20 minutes while also proactively monitoring employee intake and removing any non-compliant employees; and (5) present heat-related toolbox talks during the summer to all employees - both permanent and temporary.
As you can see, there are many measures a roofing contractor may need to take in order to sufficiently abate the hazard of excessive heat. It is also critical that roofing contractors provide employee training during the summer months on the health effects of heat, knowing how to recognize the signs and symptoms of heat illnesses in themselves or their coworkers, how to respond in the event that symptoms arise, and how to prevent heat illness. During the summer, roofing contractors should conduct daily morning show-up meetings which cover, among other safety topics, precautions to take based on the weather for the day.
In 2011, OSHA's launched a Heat Illness Prevention campaign with the safety message: Water. Rest. Shade. The campaign's website, which can be accessed by clicking here,
provides tools to develop a heat safety program and train workers. OSHA has also developed a smartphone app - called the OSHA-NIOSH Heat Safety Tool - which provides notifications with recommended abatement measures based on the heat index at the user's location. Free to download, the app provides real-time updates on what precautions to take as temperatures and humidity change from hour to hour as well as preventative measures to communicate at morning meet-ups based on the weather conditions forecasted for the day.

Importantly, our firm is actually in the process of drafting a brief on the issue of heat-illness prevention obligations under the general duty clause which we will be submitting in support of A.H. Sturgill Roofing ahead of the case being reviewed by a panel of three commissioners at OSHRC.  Therefore, you should anticipate seeing new developments in this area come out over the next couple of months.  In the meantime, if you have any questions on the issue of heat-illness prevention or would like a copy of our brief after it is filed, please contact Erin Lis by clicking here. 
DOL Re-Issues Guidance on Overtime Exemptions
The Department of Labor recently re-issued a number of wage and hour-related opinion letters that had been withdrawn by the Obama Administration. These actions mark a continued effort by the Trump Administration to shift Department of Labor policy away from the course pursued by the Obama Administration. The re-issued letters include several covering the issue of who qualifies as exempt from overtime as an administrative employee. These letters focus on the duties test, assuming that the affected employees met the salary threshold test.
In particular, Opinion Letter FLSA 2018-4 deals with whether a commercial contracting company's project superintendent qualified for the exemption from overtime. The letter request indicated that the project superintendent was responsible for overseeing a project from start to finish, with specific duties including hiring subcontractors, overseeing subcontractors' work, compliance with safety regulations, and inspection of progress, among other responsibilities. The opinion letter provides that the employee did not meet the test for being an executive or a professional. However, the opinion letter concluded that the employee did meet the administrative duties test.
The opinion letter appeared to focus on the employee's primary duty relating to the management or general business operation of the construction company. In addition, the employee appeared to exercise discretion and independent judgment with respect to matters of significance (like the hiring of subcontractors, involvement in change orders, and overseeing subcontractors' work). These duties met the standard for the exemption of administrative employees.
Opinion Letters FLSA 2018-10 and 2018-17 address the exempt status of a project supervisor for a residential homebuilding company. These letters focus on the employee's exercise of discretion and independent judgment with respect to matters of significance affecting the business of the employer. Specifically, the employees had authority to adjust the construction process as necessary to meet safety, budgetary or legal requirements, to negotiate solutions to inspection issues, to schedule suppliers and subcontractors, and to stop work if necessary. Significantly, the employees were the company's sole representative at the worksite and had to deal with any issues or problems that arose on the job. The letter concluded that the employees' duties required them to exercise discretion and independent judgment with respect to matters of significance, and therefore qualified as exempt administrative employees.
Although these letters indicate a shift in policy back to interpretations consistent with previous administrations, it is important to note that the duties tests related to overtime exemptions are highly dependent on the facts of each specific case. Accordingly, every situation must be carefully reviewed and analyzed to determine whether the particular employee is exempt from overtime requirements. If you have questions please contact either Philip Siegel by clicking here or Scott Calhoun by clicking here .

Employers Urged to be Cautious when Considering DOL's New PAID Program
On March 6, 2018, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) announced the Payroll Audit Independent Determination (PAID) program, which is aimed at encouraging employers to voluntarily work with the DOL to report and resolve "inadvertent" overtime and minimum wage violations related to the Fair Labor Standards Act (FLSA).
Under the program, participating employers who "proactively work with the" WHD to resolve compensation issues will not be assessed any penalties or liquidated damages. The program will also allow employees to recover 100% of any backpay owed without having to resort costly litigation or other fees. According to the DOL, employers who are currently under investigation or in litigation for wage violations are not eligible to participate. Employers also cannot use the PAID program to resolve the same violations repeatedly, and any settlements under the program will be limited to the potential violations at issue.
While full details of the program are not yet available, some industry experts are cautiously optimistic about the program. One expert mentioned that the PAID program may be good for employers whose wage issues only affect a few employees and result in small monetary discrepancies. The expert also noted that inadvertent FLSA violations are common because the law is difficult to implement due to its complexity and because employers often make judgment calls with regard to wage decisions that later turn out to be incorrect.
Another expert mentioned that the program could benefit employers by giving them an opportunity to resolve FLSA claims before they result in costly federal litigation. The expert also surmised that the DOL may be willing to expedite and streamline approvals of FLSA settlements and that settlements will likely include releases by employees of their FLSA claims in exchange for payment.
However, other experts caution that employers should carefully evaluate whether to participate in the program. One expert, in particular, mentioned her concerns as to whether violations resolved under the PAID program would be used against employers in future wage audits to find repeat violations, which could result in extra penalties or findings of willfulness. Without a commitment from the DOL that participation in the PAID program does not open up employers to future liability, the expert is not convinced of the benefit to employers. Instead of employers participating in the PAID program, the expert stated that employers could opt to perform self-audits of wage issues and make any payments owed to employees without involving the DOL. The expert mentioned that employers may not be able to obtain releases from employees through self-audit payments, but payment of backpay and correction of unlawful practices may eliminate the need for releases in certain scenarios.
In determining whether or not to participate in the PAID program, employers should consider a number of factors such as the number of affected employees involved, the amount of money involved, the anticipated response from employees, the confidence the employer has that the wage issues will be involved, and whether participation in PAID will create further liability down the road for the employer. Ultimately, employers should understand that, once they decide to participate in PAID, there is no guarantee that DOL will conduct additional audits and investigations. And it is also uncertain if employees who sign releases under the program will release state wage and hour claims in addition to federal FLSA claims.
If you have any questions about DOL's PAID program, or any other questions about DOL wage and hour issues, please contact William Burnett by clicking here or Philip Siegel by clicking here.
Manufacturer Facing Civil Liability for OSHA Violations
As perhaps a sign of things to come in those states with state administered occupational safety and health plans approved by Federal OSHA, the state of California has taken a novel approach in filing a civil action, in addition to issuing an OSHA citation, against an employer for its unsafe work practices.
In Solus Industrial Innovations, LLC v. The Superior Court of Orange County, the Orange County District Attorney brought an action for civil penalties under California's unfair competition law and fair advertising law. Like most employers in the construction industry, Solus advertised itself as a safe company. Unfortunately, in this instance, Solus was alleged to have committed numerous safety violations resulting from its faulty installation of an electric water heater, which exploded in its plant killing two employees. One of the more egregious allegations was that Solus had removed safety controls. Indeed, criminal charges were filed against the plan manager and maintenance supervisor.
In the civil action now making headlines, the District Attorney's theory of recovery was that Solus "made numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards, and as a result of those false and misleading statements, Solus was allegedly able to retain employees and customers in violation of [California law]."
The case made its way up to the California Supreme Court. In defense of the claims brought against it, Solus argued that the civil action was not part of the safety and health program Federal OSHA approved and therefore the action could not be pursued. Indeed, the Court of Appeals which heard the case agreed with Solus. On appeal to the Supreme Court, however, California's highest court when the other way, unanimously. The California Supreme Court determined Federal OSHA's approval of California's state plan really established a floor or minimum level of safety and health standards, and that California could certainly choose to be tougher with the enforcements of its rules. In this instance, the Court concluded that California was allowed to pursue its civil action alleging a violation of the state's unfair business practices law based on a violation of California's OSHA standards, in addition to pursuing administrative relief against Solus through enforcement of the OSHA citation.
In an interesting note, the Court also determined that the unfair business practice claims, while brought by the District Attorney in this instance, could also be brought by persons who have suffered an injury in fact.
In those states with state administered OSHA plans, it may be that similar civil actions are brought against employers who are alleged to have committed safety violations. We will have to wait and see how the Solus case impacts those states. For those of you in California, you are now on notice that in addition to facing a Cal-OSHA citation, you may be hit with a civil lawsuit.
If your company is subject to an OSHA inspection and you think a citation may be forthcoming, be sure to contact Philip Siegel who can be reached directly at (404) 469-9197, you can e-mail him by clicking here. Responding promptly to an OSHA inspection may be able to avoid issuance of a citation. If your company has already received the citation, it is always good business practice to consult with legal counsel before simply paying what may seem like a nominal fine.
Firm News
Philip Siegel was recently a guest on The Construction Leading Edge podcast with Todd Dawalt.  The episode with Philip's interview is now live and available here.