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Leland Frost

NAM Files Lawsuit to Protect Workplace Safety

By | Human Resources, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Policy | No Comments

The Manufacturers’ Center for Legal Action filed a lawsuit on Friday, July 8, 2016, to challenge the Labor Department’s Occupational Safety and Health Administration (OSHA) workplace injury and illness New Rule. The New Rule places unreasonable restrictions on employer programs to increase workplace safety. As noted in our press release, not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.

The NAM’s complaint challenges the New Rule’s prohibitions and limits on employer safety incentive programs and drug testing programs. Incident-based safety incentive programs and post-accident drug testing programs help employers promote workplace safety, which is supposed to be OSHA’s primary mission. Instead, out of a misguided zeal to improve accuracy of reporting on workplace injuries, OSHA has lost sight of the importance of reducing the number and severity of injuries themselves. Properly designed incident-based employer safety incentive programs are the most effective tool to get employees and supervisors immediately invested in workplace safety. Through these programs, employees are continuously motivated to improve their environment and to look out for their safety and the safety of others and to eliminate unsafe behaviors. The result is a dramatic decrease in accident frequency and severity.

By encouraging all employees, including supervisors, to improve workplace safety, incident-based safety incentive programs jump-start a change in culture that results in a prompt and sustained decrease in accident frequency and severity. Without these incident-based safety incentive programs, instituting a culture of safety in the workplace is much more slow and difficult and seldom leads to the same dramatic reductions in serious accidents. The New Rule is unlawful and must be vacated because it exceeds OSHA’s statutory authority; was adopted without observance of the procedures required by law; and because the challenged provisions, and their underlying findings and conclusions, are arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.

In addition, on July 12, 2016, the NAM filed a memorandum and emergency motion for a preliminary injunction seeking to prohibit OSHA from implementing the New Rule, which will otherwise take effect on August 10, 2016, causing irreparable harm to many thousands of employers across the country. The New Rule irreparably harms employers and employees by making their workplaces less safe and increasing the likelihood of workplace injuries and fatalities. If OSHA’s rule is not struck down, manufacturers will have to make a “Hobson’s choice” between eliminating or drastically restricting highly effective incident-based safety programs and/or drug testing programs, thereby increasing the number of employee injuries and even fatalities in the workplace; or else risking exposure to increased OSHA citations, inspections and penalties if the safety programs are not removed. OSHA’s main goal is to eliminate or minimize the frequency and severity of workplace injuries, illnesses and deaths—this misguided New Rule does not accomplish that goal.

New NAM Effort to Help Manufacturers with International Compliance

By | Shopfloor Legal, Shopfloor Policy | No Comments

The NAM launched a new direct legal service for our members—MCI Global—through our Manufacturers’ Compliance Institute (MCI) to provide international compliance assistance at no cost. The MCI, launched last year, has provided direct legal assistance on a variety of labor and employment questions to more than 400 NAM member companies and 550 individuals. With MCI Global, we expanded the MCI’s services to include international compliance guidance, specifically for inquiries on export controls, sanctions, customs and other market-entry fundamentals.

Working with the global law firm Squire Patton Boggs, MCI Global addresses manufacturers’ potential compliance risks that arise from evolving rules, both in the United States and abroad. Whether you are a multinational company or a small-sized exporter, MCI Global offers solutions for many of the complex operational and legal issues associated with exporting your products. Members have remarked that MCI Global is an excellent resource and works “flawlessly” to help quickly address their questions. Read More

Challenging Expansion of Waters of the United States Regulation

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

The National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) is suing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to challenge a new rule that expands jurisdiction over “Waters of the United States.” The EPA’s jurisdiction is limited to “navigable waters,” meaning waters of the United States including the territorial seas, but the EPA has attempted to expand jurisdiction over a staggering range of dry land and water features: large and small; permanent, intermittent or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. The rule exceeds constitutional authority and violates protected individual rights.

The rule will require permits for any unauthorized “discharges” somewhere that qualifies as a water of the United States. The definitions are complex and vague and often require case-by-case determinations by the agencies. Manufacturers that own property that might constitute covered U.S. waters will have to try to determine whether any activities they want to conduct could be subject to the rule, as criminal penalties for negligent violations are up to $25,000 per day and up to a year in prison per violation. The EPA may also impose civil penalties of up to $37,500 per discharge, per day, per offense. These punitive provisions discourage the reasonable and productive use of improvements to land and water features. Read More

MCLA Crosses the Ocean to Defend Manufacturers in the European Court of Justice

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Today, the NAM crossed the ocean to represent U.S. manufacturers before the European Court of Justice (ECJ) and fight against the public disclosure of confidential business information. In 2015, the ECJ granted the NAM intervener status in European Commission v. Stitching Greenpeace. This is significant because intervener status is more difficult to obtain in the European system since it grants the intervener the ability to argue before the court and have its issues addressed on the merits. Furthermore, by allowing our intervention, the court recognized the interest of U.S. industry in this case. It is very unusual that U.S. trade associations appear before the EU courts, and it was far from certain that we would succeed in being admitted.

As way of background, the plaintiffs requested the public disclosure of a massive amount of confidential business information relating to certain pesticides used both in the United States and Europe, including how products were manufactured and their final composition, in order to assess potential environmental impacts. This case has broad implications, not only for the crop protection industry, but also for many, if not all, U.S. chemical manufacturers operating both in the United States and in Europe. The lower court’s ruling leaves two options for companies selling goods in the European Union. Either they accept that their trade secrets will be made public, meaning that their data can be used and abused anywhere in the world by competitors, or they decide not to market their products in the European Union altogether, with obvious adverse consequences for the company and the European Union as a whole. Read More

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