January, 2019  
Be Sure to Comply with OSHA's Form 300A Posting Requirement
Between February 1 and April 30, covered employers must post OSHA's Form 300A in a place easily accessible to employees, such as the break room. Form 300A summarizes the total number of work-related injuries and illnesses that occurred during the prior calendar year and entered into OSHA Form 300, which logs such injuries and illnesses. Whereas Form 300 should include details, such as the nature of the injury and where it occurred, Form 300A only lists information such as the total number of deaths, cases involving days away from work, and total number of days away from work for all recordable cases. Recordable cases are those that involve a death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; diagnosis of a significant injury or illness by a healthcare professional; or a needlestick or sharps injury involving contamination by another person's blood or other potentially infectious materials.
Construction employers must post Form 300A even if no recordable injuries occurred during the prior year, with zeroes entered in the spaces.  
New this year is the applicability of OSHA's Improve Tracking of Workplace Injuries and Illnesses regulation, often commonly referred to as OSHA electronic recordkeeping regulation. Employers subject to the rule must electronically submit their 2018 300A Annual Summary to OSHA no later than March 2, 2019.  Importantly, on January 24, OSHA published its final rule revising the electronic recordkeeping regulation.  The final rule eliminates the requirement to submit OSHA Forms 300 and 301, which applied to establishments with 250 or more employees.  Only the 300A form must be submitted. 
Under current rules, injury and illness records must be maintained at the worksite for at least five years. Also, copies of the records must be provided to past and current employees, or their representatives, upon request.
If you have any questions about OSHA's recordkeeping requirements, or any other questions about OSHA, please contact William Burnett or Philip Siegel. You can reach William Burnett directly at (404) 469-9183 or e-mail him by clicking here. You can reach Philip Siegel directly at (404) 469-9197 or e-mail him by clicking here.

Planning Ahead: Is It Time for a Corporate Audit?
The beginning of a new year is a good time to ensure that your company is in compliance with state regulatory requirements. In addition to any licensing issues, corporations and LLC's are generally required to file annual reports in their home states and in other states where they are qualified to do business. For corporations, annual minutes need to be prepared electing directors and officers, and the corporate minute book should be updated. More than that, however, every business needs to be operated as an entity separate from its owners and separate from related companies. For example, if the business leases its office space from an owner, a proper lease should be executed, and the funds should clearly flow as required by the terms of the lease.
For companies operating in more than one state, you should be aware that a number of issues may need to be addressed. To be qualified to do business in the new state, the company may need to make certain filings with the Secretary of State of that state. A license to perform the particular services may be required in the new state even if not required in the company's home state.   The company will also have to comply with the new state's workers compensation requirements, as well as meet any tax registration or bond requirements.
If a business entity does not follow these formalities and comply with these requirements, the owners may lose the protection of the corporate shield and may be exposed to other liabilities. As a result, owners' individual assets and possessions may become vulnerable to claims that may arise in the operation of the business. Given the risks of running a business in the construction industry, the consequences could be significant. That is why we recommend that all our clients have corporate audits and the beginning of the year is a good time to get one scheduled. Doing so can help ensure the long-term success of the business and protect the assets of the owners.
If you would like more information about what a corporate audit might involve or if you would like some information about having one performed, please contact Scott Calhoun directly at 404-469-9195 or email him by clicking here.
Understanding OSHA: OSHA'S Increased Penalty Amounts
On November 3, 2015, President Obama signed the Bipartisan Budget Act of 2015 (Act) into law. The Act was a two-year deal that was negotiated quickly to avoid a default on our nation's debt. Budgets often contain obscure changes to laws that are not easily identified. However, this Act was unique because it contained a provision that allowed the Occupational Safety and Health Administration (OSHA) to increase its maximum penalties for the first time in 25 years.
Most government agencies typically have the authority to adjust their maximum penalty amounts annually for inflation. However, OSHA had not been allowed to adjust its penalties amounts since they were enacted over 25 years ago. Importantly, the Act does allow OSHA to annually adjust the maximum penalty amounts to reflect inflation, similar to other government agencies.
For 2019, OSHA recently announced maximum penalty amount increases to account for inflation. Penalties for an other-than-serious violation, a serious violation, and a failure-to-abate violation increased to $13,260, which represents a $326.00 increase over these same penalties in 2018. Willful and repeat violations now have a maximum penalty amount of $132,598 per violation, which represents an increase of $3,262.00 over last year's maximum penalty amount for willful or repeat violations.
In light of this increase in OSHA penalty amounts, and the fact that these amounts will continue to increase annually to account for inflation, it is a good time to revisit your company safety program to make sure you are taking those steps necessary to defeat a citation based on the unforeseeable employee misconduct defense. To establish the affirmative defense of unforeseeable employee misconduct, an employer must show that it (1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.

While most roofing contractors have work rules, provide training, inspect their jobsites, and discipline employees who violate safety rules, it is absolutely imperative that documents are maintained that provide evidence of the same, and that the company's safety program, especially its disciplinary component, is effective such that violations are truly unforeseeable. Even verbal reprimands should be documented. All documents which would support the affirmative defense of unforeseeable employee misconduct should be well organized and stored in a safe place for easy access in the event the company is cited for an OSHA violation.

Controlling employers in Texas, Louisiana and Mississippi can now be held liable by OSHA for hazardous conditions at a multi-employer worksite regardless of whether their employees are exposed
On November 26, 2018, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Acosta v. Hensel Phelps Construction Co., 909 F.3d 723 (5th Cir. 2018) rejecting a general contractors challenge to OSHA's Multi-Employer Citation Policy and overturning almost 40 years of Fifth Circuit court precedent which held that "OSHA regulations protect only an employer's own employees." (See Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981). The Fifth Circuit decision in Hensel Phelps affirmed OSHA's authority to issue citations to a controlling employer at a multi-employer worksite whose own employees were not exposed to the cited violative condition.
Under OSHA's multi-employer citation policy, a controlling employer is an employer who is responsible for controlling the work on a jobsite and has general supervisory authority of over the worksite, including the power to correct safety and health violations itself or require others to correct them. As a result of the Hensel Phelps decision, controlling employers in Texas, Louisiana and Mississippi - the three states that fall under the geographical territory of the Fifth Circuit - now join the rest of the country in facing OSHA liability for failing to prevent or correct hazardous conditions at a multi-employer construction site they control, regardless of whether their own employees are exposed.
The Hensel Phelps case arose from a 2015 OSHA citation issued at an Austin, Texas jobsite where Hensel Phelps had been hired as the general contractor to build a new public library.  During excavation, Hensel Phelps witnessed employees of one of its sub-subcontractors, CVI, working in an area that was not properly sloped and protected from cave-in hazards in violation of 29 C.F.R. § 1926.652(a)(1). Hensel Phelps and CVI were cited with a willful violation. The record was clear that Hensel Phelps' employees were not exposed to the cited hazard, and Hensel Phelps argued that under Fifth Circuit case law, it could not be held liable for the violation as a "controlling employer." The case was heard before both tiers of the administrative courts of the Occupational Safety and Health Review Commission, who vacated Hensel Phelps' willful citation in accordance with Fifth Circuit precedent originating from Melerine (1981).  
OSHA appealed the Commission's decision to the Fifth Circuit, arguing that Section 654(a)(2) of the OSH Act creates a duty for employers to ensure safe conditions at worksites which are under their control, not only for their employees, but also for the employees of others who occupy the site.  Using the Chevron legal test for determining whether judicial deference is owed to an agency's interpretation of a statute it administers, the Fifth Circuit determined that, like the seven other circuit courts before it that analyzed OSHA's interpretation of Section 654(a)(2) of the OSH Act under Chevron, that OSHA's interpretation of an employer's duty of care to third persons was a reasonable one.
OSHA Issues Final Rule on Certification Requirements for Crane Operators

On November 7, 2018, OSHA published a final rule to clarify federal requirements for the training, certification, and qualification of crane operators. Under this rule, which took effect on December 9, 2018, employers are required to train crane operators as needed, evaluate them, and document successful completion. The training, which can occur through a combination of formal and practical lessons, must ensure that crane operators have the skills, knowledge, and ability necessary to identify and prevent risks associated with operating crane equipment safely for the assigned work. OSHA has identified the specific types of knowledge and skills necessary for safe crane operation in 29 CFR 1926.1427(j)(1) and (2).
The final rule also requires that crane operators be certified or licensed and receive ongoing training as necessary to operate new crane equipment. Operators can be certified based on the crane's type and capacity, or type only, which ensures that more accredited certification organizations are able to meet OSHA's certification program requirements. This rule revises a requirement from 2010 that crane operator certifications must specify the rated lifting capacity of the cranes for which the operator is certified. Previously compliant certifications that were already issued by type and capacity are still acceptable under this new rule. Also, this final rule makes it clear that employers are responsible for the cost of certifications.
Only the training and certification sections of the final rule took effect on December 9, 2018. By February 7, 2019, employers will have to complete an evaluation of each crane operator to show that he or she is qualified by demonstrating the skills and knowledge necessary to (a) operate the equipment safely and (b) recognize and prevent any risks associated with the operation of the equipment. Employers who have evaluated crane operators prior to December 9, 2018 will not have to re-evaluate operators again but will only have to document when those evaluations are completed. Instead, re-evaluations are only required whenever a crane operator is re-trained by an employer who believed that re-training was necessary based on the crane operator's performance or an evaluation of the operator's knowledge.
If you have any questions about OSHA's crane operator final rule, please contact William Burnett or Philip Siegel. You can reach William Burnett directly at (404) 469-9183 or e-mail him by clicking here. You can reach Philip Siegel directly at (404) 469-9197 or e-mail him by clicking here.
Philip Siegel to Present Killer Contract Clauses Seminar
On February 27, at 9:00 AM Eastern, Philip Siegel will present a two hour educational session to the Associated Builders and Contractors of Georgia titled, "Killer Contract Clauses".  The educational session is available to both ABC members and non-members.
During this presentation, Philip will discuss the top 10 - 15 contract clauses that contractors commonly face when presented with a contract from a general contractor or owner.  The legal consequences of these clauses will be discussed, as well as how to revise these clauses so they are more equitable for the roofing contractor.  You can register for the seminar by clicking here.

Firm News
Philip Siegel has been named one of Georgia's 2018 Legal Elite Super Lawyers in the December, 2018 edition of GeorgiaTrend magazine!

Learning Opportunities from HPSS Available on the Internet
Philip Siegel recently presented two webinars addressing timely labor and employment topics in the construction industry.  You can access Philip's webinar on the Top 10 Employment Law Mistakes Most Commonly Made by Contractors presented to eSub Construction Software by clicking here.  Philip's presentation to the American Subcontractors Association titled "High Times - Navigating a Drug Free Workplace in Light of Marijuana Use Laws and Restrictions on Post-Accident Testing" can be accessed by clicking here.  Lastly, Philip was a featured guest on the Think Bid podcast hosted by nationally known business coach Jon Dwoskin.  You can listen to the podcast by clicking here.