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International Trade: Alert - November 3, 2009

The Obama administration has adopted a dual-track strategy toward Iran by opening a dialogue while also laying the groundwork for tougher sanctions. In addition to discussing this and other developments in U.S.-Iran relations, this alert examines what tougher sanctions – as well as pending House and Senate bills and increasingly aggressive actions taken by federal agencies against specific foreign entities that are believed to have violated U.S. embargo or export laws – could mean for foreign companies and U.S. subsidiaries that do business with Iran, particularly its petroleum industry.

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Government Contracts: Alert - November 2, 2009

On October 28, 2009, the U.S. Small Business Administration (SBA) issued a lengthy proposed rule to make changes to its 8(a) and size regulations. While the proposed rule purports to codify many of SBA’s existing policies and practices, it also makes significant changes to SBA’s current regulations and implicitly overrules certain decisions of SBA’s Office of Hearings and Appeals (OHA). Among other things, SBA proposes significant changes to its mentor-protégé pro­gram and, in particular, the rules applicable to joint ventures between mentors and protégés for both 8(a) and non-8(a) small business set-aside contracts. This alert summarizes the most significant changes in the proposed rule as relevant to mentor-protégé joint ventures.

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Labor, Employment and Benefits
Newsletter - January 2000
 
In this Issue...
OSHA Must Prove Lack Of Reasonable Diligence
 
 January 1, 2000
 

In the recent case of Secretary of Labor v. Ragnar Benson, Inc. (OSHRC Sept. 26, 1999), the Occupational Safety and Health Review Commission held that, in order to sustain a violation against an employer, OSHA has the burden of proving that the employer knew of the violation.

In Ragnar, an OSHA Compliance Officer noticed what he believed to be violations while he was driving by a construction site in Skokie, Illinois. He observed what appeared to be a missing guardrail from a second-story scaffolding. When he reached the second story he found two openings in the concrete floor that had been covered with plywood that was not fastened in place or marked. The employer was cited for these violations.

On review, the Commission held that, in order to prove that an employer violated an OSHA standard the Secretary of Labor must prove that:

  • the standard applied to the working conditions cited
  • the terms of the standard were not met
  • employees were exposed or had access to the violative conditions
  • the employer either knew of the violative conditions or could have known with the exercise of reasonable diligence

The Commission held that an employer's duty is "to take reasonably diligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard."

It appears that Ragnar had an active safety program in place. Part of the daily duties of the job superintendent was to coordinate subcontractor work and point out any safety violations. The project manager visited the site once a week as did its general superintendent/safety manager. All three of these employees testified that they were not aware of the violative conditions. Based upon these facts, the Commission held that the Secretary of Labor did not meet its burden in establishing that the employer's failure to discover the violative condition was due to a lack of reasonable diligence.

The lesson to be learned is that an employer's active safety program acts not only as a shield in guarding its employees from hazards associated with the workplace, it can also be used as a sword to defeat citations issued by OSHA.

For more information please call Michael G. Murphy, P.E. at 1-888-688-8500.

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