Federal, state and city governments all closely scrutinize employers within the construction industry. From the U.S. Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) to the state Department of Labor and Employment and Department of Regulatory Agencies, these government entities may investigate your company for wage-related issues, employee misclassifications, workplace accidents and injuries, breaches of the Immigration Reform and Control Act, and more. While following the letter of the law at all times can help you avoid the disruption in operations and negative publicity that generally accompany an investigation, you may still eventually find your company under government scrutiny. Fortunately, a little preparation can help you minimize the impact of the situation.
Assure documents are not destroyed. Providing investigators with detailed, complete documentation can help you avoid costly penalties, fines and litigation. Your construction company should already have a policy in place to preserve and protect vital information including application materials, pre-employment screening results, employment forms, hours worked and wages paid, disciplinary records, workplace injury and illness reports, accident reports, workplace safety training and more.
You should also retain any electronically stored information that may be needed in the future indefinitely. This includes digital timecard records and emails. While storage constraints may tempt you to delete this information periodically, it could help to back up your claims in the event of an investigation.
Consult your legal professional as soon as possible. Regulators are going to demand documents and access to employees for interviews. Before you comply, consult your legal professional. Legal privileges may apply to trade secrets and other confidential information. If you share this privileged information with third parties—including government regulators or the media—you may inadvertently waive the privilege to protect it. Though this can demonstrate cooperation and establish your company’s innocence early on, it may expose you to unnecessary risk in the event of subsequent litigation.
Conduct your own investigation. An internal investigation will allow you to identify any potential wrongdoing on your own and prepare a defense or take appropriate corrective action. If you are in the wrong, addressing the issue immediately will help you preserve your reputation and further demonstrate cooperation. Consider enlisting the help of your legal counsel in the internal investigation, especially for employee/witness interviews. While you may elect to produce a written report outlining the findings of your investigation, keep in mind you may ultimately have to disclose it to the government. Avoid premature conclusions, inflammatory language or including privileged information.
Prepare a unified response. High-profile government investigations usually trigger media inquiries. Your customers and shareholders may also want to know more about the situation. Ensure your team is delivering a consistent message by preparing a unified response and funneling all outside communications about the investigation through one point of contact. A member of senior management or a company spokesperson is generally the best choice. Take time to run the response past your legal counsel before he/she begins distributing it. The information should be accurate and free from privileged information.
Establish a relationship with a risk management advisor.Government investigations are a sometimes unavoidable risk of doing business in the construction industry. A risk management professional can help you identify possible areas of investigation and address potential issues before they trigger government scrutiny.
As of December 1, 2016, millions of additional American workers will be eligible for overtime pay. The new Department of Labor (DOL) rule, issued on May 18, raises the minimum salary an employee has to earn in order to qualify to be exempt from overtime pay to $47,476. It was previously set at $23,660. Any employee earning less than the minimum must be paid overtime for all hours they work in excess of 40 hours each week.
Additionally, the new rule will automatically update the salary threshold every three years, basing the new minimum on wage growth over time. These updates will begin on January 1, 2020.
What does this mean for your construction company? According to the DOL’s three-part test:
If the employee has a fixed salary that does not vary based on the hours or quality of his/her work,
And is paid at least $913 per week or $47,476 per year,
And his/her job responsibilities primarily consist of executive, administrative or professional duties,
He/she will be excluded from overtime pay.
While many business owners, nonprofit groups and universities swiftly criticized the new rule, the DOL has stated that every American deserves a fair day’s pay for a hard day’s work. They believe the new rule will make fair pay a reality for 4.2 million workers, “too many of whom have been left working long hours for no additional pay, taking them away from their families and civic life without any extra compensation.”
Though those in opposition believe the new rule will force contractors to cut workers’ hours, reduce their workforce, pare down employee benefits and have a disruptive effect on a number of industries—including construction—the DOL has countered that employers actually have plenty of options to manage the effect of the new overtime rule on their business.
These options including switching employees from salary to an hourly pay scale and paying time-and-a-half for overtime work. They can also raise the salary of employees who are close to the threshold to avoid the overtime issue entirely, or redistribute workloads so that no one is required to exceed 40 hours per week.
Some experts predict the change may lead to a further increase in lawsuits regarding wages and hours. These have risen dramatically over the past few years and often brought against organizations by groups of employees rather than individual workers. Defense costs are often significant, and double damages and attorney’s fees are frequently awarded. Should such a lawsuit be brought against your construction company, it’s very possible the costs will exceed the amount of wages in dispute. We encourage you to prepare for the new wage rule and contact an advisor if you have questions or need assistance determining if your pay practices are in compliance.
According to the Bureau of Labor Statistics 2014 Census of Fatal Occupational Injuries, there were 874 fatal work injuries in construction in 2014, the highest total since 2008. Research by CPWR, the center for construction research and training, has found that construction workers are 18 percent more likely to experience a workplace injury than workers in other fields. CPWR researchers also found that the risk of injury doubled for construction workers who held five or more construction jobs each year when compared to those who only worked one or two jobs. This data suggests that worksite inexperience increases the risk factor for work-related injuries, perhaps because new construction workers may not understand their safety rights and responsibilities. They may also be uncomfortable reporting jobsite hazards or underestimating their risks.
To reduce safety risks and keep your worker’s compensation claims and insurance costs low, it’s important to consider new workers when creating or reviewing your jobsite safety program. Experts suggest that one of the best things you can do is provide safety orientation for every new worker on your jobsite. Each orientation should include:
The hazards they can expect to encounter and how to identify them
How to assess and report hazards
The personal protective equipment available on the jobsite
When personal protective equipment is required
Worker OSHA rights and employer responsibilities
Review of the jobsite safety program and their responsibilities
How to handle emergency situations
How to report jobsite accidents and injuries
You can also reduce new worker safety risks on the jobsite by assigning low-risk duties during the first month. Initial tasks should not require complicated training or require solo work. Instituting a mentoring program or buddy system through which you pair new construction workers with those who are more experienced can be a very helpful addition to a thorough orientation.
Reinforce safety with new workers on a weekly basis. After the first month, assess their knowledge of your jobsite’s safety policies and procedures. If you determine a new worker has a firm grasp of the information he/she needs to help maintain the safety of the jobsite, you can then advance him/her to higher-risk duties.
Research by the Institute for Work and Health has found that the risk of work injury is particularly elevated during a worker’s first month on the job and remains higher than average for the first year on the job. Those in their first month on the job are over three times more likely to experience a lost-time injury as those with more than 12 month’s tenure. If you’d like assistance reviewing your current jobsite safety program to ensure it properly addresses new worker risks, we’re here to help.
Outdoor work and lightning danger often go hand in hand. According to the National Weather Service, 34 percent of the work-related lightning fatalities that occurred between 2006 and 2015 were in farming and ranching. Roofing and construction accounted for 15 percent and 11 percent respectively, while lawn care (9 percent), barge workers (4 percent) and the military (4 percent) also had fatalities caused by lightning. Every year, cloud to ground lightning occurs 20 to 30 million times—striking an average of 300 people in the process. While lightning only kills about 50 people every year, many more of the victims suffer permanent disabilities.
As a construction employer, it’s important that you recognize lightning as a very real workplace hazard. The Occupational Safety and Health Administration (OSHA) suggests all employers with outdoor workers include a lightning safety protocol within their written emergency action plan. This safety protocol should include when specific lightning safety actions should take place, how to notify workers of immediate lightning danger, appropriate safety actions, and necessary response times. Employers should also post lightning safety information at all their outdoor jobsites and review the emergency action plan with affected employees.
Recognizing Lightning Danger
OSHA recommends that construction employers monitor weather reports from the National Oceanic and Atmospheric Administration (NOAA) whenever they have workers on outdoor jobsites. They suggest that employers consider rescheduling jobs when hazardous weather conditions are in the forecast. Employers should also require their supervisors and outdoor workers to watch for the darkening clouds and increasing wind speeds that usually indicate developing thunderstorms.
Responding to Lightning Danger
Put simply, “When thunder roars, go indoors.” According to the NOAA, no outdoor location can offer adequate safety when a thunderstorm is in the area. Whenever possible, your workers should be instructed to retreat to a fully enclosed building if they hear thunder or see lightning. They should remain with in this shelter for at least 30 minutes after the last rumble of thunder.
If a fully enclosed building is not available, your workers should be instructed to retreat to their vehicles and roll up the windows. Again, they should not resume work until at least 30 minutes after the last thunderclap.
If workers do not have access to a fully enclosed building or their vehicles, they should be instructed to avoid utility poles, cell phone towers, cranes, ladders, scaffolding, large equipment, wiring, plumbing, fencing and rooftops. They should also avoid open areas and water. Retreating to a dense area of small trees that are surrounded by large trees or a low-lying area such as a ditch may be their best option.
Lightning Detection Services
Monitoring NOAA weather reports and weather conditions at the jobsite are usually the most efficient ways to identify lightning danger. However, commercial lightning detection and notification services are also an option. These services send an alert when lightning activity moves to within a certain range of the jobsite but they cannot predict the first lightning strike. Portable, hand-held lightning detectors detect the electromagnetic signal from lightning strikes and can estimate distance. But again, they cannot predict where lightning will strike.
construction worker checking location site with crane on the background ** Note: Shallow depth of field
Outdoor work and lightning danger often go hand in hand. According to the National Weather Service, 34 percent of the work-related lightning fatalities that occurred between 2006 and 2015 were in farming and ranching. Roofing and construction accounted for 15 percent and 11 percent respectively, while lawn care (9 percent), barge workers (4 percent) and the military (4 percent) also had fatalities caused by lightning. Every year, cloud to ground lightning occurs 20 to 30 million times—striking an average of 300 people in the process. While lightning only kills about 50 people every year, many more of the victims suffer permanent disabilities.
As a construction employer, it’s important that you recognize lightning as a very real workplace hazard. The Occupational Safety and Health Administration (OSHA) suggests all employers with outdoor workers include a lightning safety protocol within their written emergency action plan. This safety protocol should include when specific lightning safety actions should take place, how to notify workers of immediate lightning danger, appropriate safety actions, and necessary response times. Employers should also post lightning safety information at all their outdoor jobsites and review the emergency action plan with affected employees.
Recognizing Lightning Danger
OSHA recommends that construction employers monitor weather reports from the National Oceanic and Atmospheric Administration (NOAA) whenever they have workers on outdoor jobsites. They suggest that employers consider rescheduling jobs when hazardous weather conditions are in the forecast. Employers should also require their supervisors and outdoor workers to watch for the darkening clouds and increasing wind speeds that usually indicate developing thunderstorms.
Responding to Lightning Danger
Put simply, “When thunder roars, go indoors.” According to the NOAA, no outdoor location can offer adequate safety when a thunderstorm is in the area. Whenever possible, your workers should be instructed to retreat to a fully enclosed building if they hear thunder or see lightning. They should remain with in this shelter for at least 30 minutes after the last rumble of thunder.
If a fully enclosed building is not available, your workers should be instructed to retreat to their vehicles and roll up the windows. Again, they should not resume work until at least 30 minutes after the last thunderclap.
If workers do not have access to a fully enclosed building or their vehicles, they should be instructed to avoid utility poles, cell phone towers, cranes, ladders, scaffolding, large equipment, wiring, plumbing, fencing and rooftops. They should also avoid open areas and water. Retreating to a dense area of small trees that are surrounded by large trees or a low-lying area such as a ditch may be their best option.
Lightning Detection Services
Monitoring NOAA weather reports and weather conditions at the jobsite are usually the most efficient ways to identify lightning danger. However, commercial lightning detection and notification services are also an option. These services send an alert when lightning activity moves to within a certain range of the jobsite but they cannot predict the first lightning strike. Portable, hand-held lightning detectors detect the electromagnetic signal from lightning strikes and can estimate distance. But again, they cannot predict where lightning will strike.
UFOs are a daily danger for construction workers, though we’re not talking about visitors from other planets. According to the Occupational Safety and Health Administration (OSHA), 73 construction workers were killed after being “struck by objects” in 2014. In fact, it’s the third most common cause of death on construction jobsites (following falls and electrocutions) and includes unexpected falling objects as well as unexpected flying objects, or UFOs.
How do these UFO injuries occur? In some cases, tools may be accidently dropped off of scaffolding or roofs and strike other workers below. Objects being hoisted to upper levels of buildings during the construction process can break free and plummet to the ground. Haphazardly stored materials may topple over, and errant nails fired from nail guns can strike unprotected workers as well.
While wearing personal safety equipment—including hardhats (for overhead hazards), safety glasses, goggles and face shields (for flying hazards)—is essential, below are some of the additional safety standards OSHA suggests construction companies follow when their employees are working with or around common UFO hazards:
When working underneath cranes, hoists or scaffolds, workers should beware of unbalanced loads, stay clear of lifted loads, and avoid crossing beneath a suspended load. Toe boards should be installed on scaffolds to prevent objects upon them from falling.
When performing overhead work, employees should secure all their tools and materials. Areas where falling objects may be a danger should be barricaded, and any materials stored in buildings under construction should be at least six feet away from floor openings and 10 feet away from partially constructed exterior walls.
When working with hand tools, construction employees should avoid hammers with loose or damaged handles as well as wrenches with sprung jaws and impact tools with mushroomed heads. All pose a potential UFO danger to the worker and others in the area.
When working with jackhammers and pavement saws, workers should ensure all machine guards are in working order. They should also wear protection against flying particles on their feet, eyes, ears and hands.
When pushing or pulling objects that may become airborne, OSHA urges workers to stack and secure materials to prevent sliding, falling or collapse as well as against wind gusts.
Train your construction workers to be aware of their surroundings whenever they are on the jobsite. Outline essential safety standards in your worksite safety program and review them with your construction team regularly. Encourage them to report unsafe situations and behaviors to the appropriate party.
Most construction injuries are covered by your workers’ compensation insurance policy. However, injured workers may also choose to file a lawsuit against employers who they feel caused or contributed to their on-the-job injury. With construction jobsite injuries so common, are you confident you have enough insurance to protect your business? Give us a call today to take a look at your current policies and evaluate your level of coverage.
