CAPITOL HEIGHTS, Md. – The U.S. Department of Labor’s Occupational Safety and Health Administration has cited the U.S. Postal Service for workplace safety violations related to electrical hazards found at the Capitol Heights Processing and Distribution Center. Proposed penalties total $272,000.

“These citations and sizable fines reflect the Postal Service’s failure to equip its workers with the necessary knowledge and skills to safely work with live electrical parts,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “The Postal Service knew that proper and effective training was needed for the safety of its workers but did not provide it.”

OSHA initiated an inspection in January 2010 in response to a complaint alleging the hazards. Inspectors cited the Postal Service with four willful violations carrying a penalty of $265,000 and one serious violation with a penalty of $7,000.

The willful violations include inadequate training for workers exposed to electrical hazards, failing to provide electrical protective equipment to protect workers from arc-flash hazards and electrical current, and failing to use appropriate safety signs, safety symbols or accident prevention tags to warn employees about electrical hazards. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.

The serious violation includes the facility’s failure to provide voltage-rated tools. OSHA issues a serious citation when there is substantial probability that death or serious physical harm could result and the employer knew, or should have known, of the hazard.

The Postal Service has 15 business days from receipt of its citations to comply, meet with the OSHA area director or contest the findings before the independent Occupational Safety and Health Review Commission. This inspection was conducted by OSHA’s Baltimore/Washington Area Office, which can be reached at 410-865-2055. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

The U.S. Department of Labor has filed an enterprise-wide complaint against the U.S. Postal Service for electrical work safety violations. The complaint asks the Occupational Safety and Health Review Commission to order the USPS to correct electrical violations at all its facilities nationwide. This complaint marks the first time OSHA has sought enterprise-wide relief as a remedy.

note: This is just a press release from OSHA. APWU reported safety violations at the Maryland facility last week.

The Department of Labor filed a complaint [PDF] against the Postal Service on July 6 for ongoing and systemic violations of safe electrical work practices, marking the first time the department has sought an “enterprise-wide” remedy.

“When the same safety violation is discovered in multiple locations of an organization, we need an enterprise-wide remedy to protect workers from the hazard,” Solicitor of Labor M. Patricia Smith said.

The request for enterprise-wide reliefis based upon the discovery of numerous, similar electrical work safety violations in the course of investigations conducted by the department’s Occupational Safety and Health Administration of USPS mail processing and distribution facilities across the country,” an OSHA press release said.

“There was a substantial probability that death or serious physical harm could result from the conditions that existed,” the complaint asserted, and USPS knew of the violations, or with the exercise of reasonable diligence, could have known of them.

APWU Director of Industrial Relations Greg Bell said, “We are pleased that the Department of Labor has recognized the serious and widespread nature of the Postal Service’s failure to adhere to electrical safety standards. We will continue to monitor the progress in addressing this issue.”

“The union made many attempts over many years to persuade postal management to correct these deficiencies,” Bell noted. “The USPS stubbornly refused to address the problems. As a result, we advised locals to file formal complaints with OSHA.”

The Department of Labor complaint asks the Occupational Safety and Health Review Commission to order the USPS to correct the violations; uphold fines and penalties; conduct training on safe electrical work practices; provide personal protective equipment to affected employees, and withdraw flawed management orders and instructions regarding safe electrical work practices.

“For many years USPS has known of its enterprise-wide failure to comply with OSHA’s electrical safety-related work practices standards,” the complaint says. “Between 2004 and late 2009, USPS failed to institute necessary protective measures for its employees, even though it was aware of ongoing electrical safety problems.” OSHA issued new electrical safety standards in 2004.

The USPS prepared a Management Maintenance Order (MMO) and Management Instruction (MI) regarding safe electrical work practices in 2004, but did not release or implement the MI until Dec. 24, 2009, and did not release or implement the MMO until Feb. 1, 2010.

In the interim the APWU pointed out deficiencies in the policies and procedures outlined in the documents, and urged the Postal Service to correct them. Instead, on March 6, 2006, the USPS issued a memorandum informing managers that it was working to revise its policies. The memo failed to provide information on interim protective measures and instructed managers not to “expend funds on any NFPA [National Fire Protection Association] 70E training or consulting activities.”

The MMO and MI “fail in significant respects to ensure compliance with the requirements of the electrical safety-related work practices standards,” the complaint notes.

Beginning in October 2009, OSHA undertook several dozen inspections — some of which are ongoing — at USPS facilities across the country, and has issued fines and citations at 15 locations.

The Postal Service has 20 business days to answer the complaint.

The U.S. Postal Service “knowingly put its workers in harm’s way” at its Eagan processing center by exposing employees to the potential for electrical shock, prompting federal officials to levy $210,000 in fines, U.S. officials announced Tuesday.

The allegations from the Labor Department’s Occupational Safety and Health Administration (OSHA) contend that the Postal Service (USPS):

• Failed to provide required safety training for its workers.

• Did not ensure employees used proper safety-related practices while operating electrical equipment.

• Did not provide workers with the proper safety equipment

According to APWU up until today the recent citations bring the Postal Service’s total fines to nearly $2.5 million. Now with the $210,000 in fines announced today the total stands at $2.7 Million

“These citations and sizable fines reflect the Postal Service’s failure to equip its workers with the necessary knowledge and skills to safely work with live electrical parts,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “The Postal Service knew that proper and effective training was needed for the safety of its workers but did not provide it.”

OSHA’s inspection, which began Dec. 29, 2009, in response to a complaint from workers at the Scarborough facility, found employees working with or near live electrical equipment without adequate training or qualifications, personal protective equipment, safety-related work practices and warning signs.

These conditions exposed the workers to electric shock, arc flashes and arc blasts and resulted in OSHA issuing six willful citations, with $420,000 in proposed fines, to the Postal Service. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.

In addition, OSHA found that access to electrical panels was blocked in several instances by materials being stored adjacent to them. This situation resulted in one repeat citation, with a $10,000 fine, since the Postal Service had been cited in November 2007 for the same type of hazard at a Toledo, Ohio, postal facility.

The Postal Service has 15 business days from receipt of its citations and proposed penalties to comply, meet with the OSHA area director or contest the findings before the independent Occupational Safety and Health Review Commission. This inspection was conducted by OSHA’s Augusta Area Office; telephone 207-626-9160. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.  For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.  An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands “in loco parentis” to the child.
 
Wage and Hour Division Administrator’s Interpretation No. 2010-3
June 22, 2010
Issued by Deputy Administrator Nancy J. Leppink

 SUBJECT: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.

 The Administrator has determined that additional clarification is needed on the definition of “son or daughter” as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition.  Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship.  The Administrator is issuing this interpretation to provide needed guidance on this important area of law.

Background
The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition.  See 29 U.S.C. § 2612(a)(1)(A) – (C); 29 C.F.R. § 825.200.  The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”  29 U.S.C. § 2611(12).  See also 29 C.F.R. §§ 825.122(c), 825.800.[1]

The Wage and Hour Division has received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child. 

In Loco Parentis
The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.  29 U.S.C. § 2612(a)(1)(A) – (C).  The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”  29 U.S.C. § 2611(12).  See also 29 C.F.R. §§ 825.122(c), 825.800.
Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.  Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”  See S. Rep. No. 103-3, at 22.  Congress stated that the definition was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.”  Id.

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.  It embodies the two ideas of assuming the parental status and discharging the parental duties.”  Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted).  Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.”  Black’s Law Dictionary 803 (8th ed. 2004).  “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child.  The intent to assume such parental status can be inferred from the acts of the parties.”  Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original). 

Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors.  Megonnell v. Infotech Solutions, Inc., 2009 WL 3857451, *9 (M.D. Pa. 2009).  Courts have enumerated factors to be considered in determining in loco parentis status; these factors include the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.  Dillon, 382 F. Supp. 2d 777, 786 -787 (D. Md. 2005). [2] 

The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.  29 C.F.R. § 825.122(c)(3).  Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.  Id.  It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.  For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.  The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.  For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.  Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.  Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.  For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.  Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship.  A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.  See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents.  Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status.  In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

Conclusion
Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.  In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

 [1]  This Administrator’s Interpretation does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions.  See 29 C.F.R. § 825.122(g), (h).

[2] There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status.  See e.g., Martin v. Brevard County Public Schools, 543 F.3d 1261 (11th Cir. 2008) (fact issue whether employee stood “in loco parentis” to his granddaughter, though the employee provided financial support, shelter, food and health insurance); Dillon, 382 F. Supp. 2d at 787 (genuine issue of material fact as to whether grandmother stood in loco parentis to employee, although grandmother had provided a home and financial support); Brehmer v. Xcel Energy, Inc., No. 06-3294, 2008 WL 3166265, at *7 (D. Minn. 2008) (finding genuine issue of material fact on in loco parentis issue where employee helped his girlfriend’s son eat, dress, get ready for bed, took child to doctor appointments and to school, went to child’s softball games, and contributed more than half of child’s financial support).

APWU News

Issuing its third set of citations in less than a week, the Occupational Safety and Health Administration (OSHA) charged the USPS with five counts of “willful” safety violations [PDF] in Bedford Park, IL on May 5. The latest citations bring the Postal Service’s total fines for these violations to nearly $1 million.

The Postal Service willfully exposed employees to hazards associated with live electrical parts, OSHA said. Postal workers were found working on live machinery with more than 480 volts of electricity without being provided nonconductive head protection, voltage-rated gloves, flame resistant clothing, or face shields to prevent injury from electric arcs. In addition, employees were not properly trained to work on machines.

OSHA issued the Postal Service $210,000 in fines for knowingly exposing employees to the risk of electric shock. The most recent citations follow OSHA fines of more than $500,000 dollars in Providence, RI and more than $200,000 in Denver, CO for similar electrical safety violations.

The APWU expects more safety violations to be issued by OSHA in the coming weeks. Check www.apwu.org for updated information.

OSHA’s inspection, which began in November 2009, found that the Postal Service failed to provide required electrical safety training for its workers; to ensure workers used safety-related work practices while working on electrical equipment; and to provide workers with appropriate personal protective equipment while working on energized equipment. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirement, or plain indifference to employee safety and health.

“These sizable fines reflect the severity and ongoing nature of these hazards,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “The Postal Service ignored long-established safety standards and knowingly put its workers in harm’s way.”

Within the past five years, OSHA has conducted more than 900 inspections at USPS facilities across the country and has issued more than 600 citations. The Bedford Park location has more than 800 employees and has received several OSHA citations during the past four years.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission. This inspection was conducted by OSHA’s Calumet City Area Office; telephone 708-891-3800. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

source:Department of Labor

USPS Subcontractor Defrauds Drivers of Wages, Benefits
Postal Management Refuses to Sever Ties with Company

Last month, newspapers reported a settlement [PDF] between the Department of Labor and a USPS subcontractor that exemplifies the problem with postal subcontracting: After three years of defrauding its workers of pay and benefits, the contractor, MT Transportation & Logistics Services, Inc. was ordered to pay employees $1.8 million in back wages, and was barred from entering into new federal contracts for three years.

The Department of Labor (DOL) found the contractor, a Long Island trucking company, guilty of withholding wages and benefits from more than 500 employees from December 2005 through December 2008. The company is under contract with the Postal Service to haul mail.

“This is an example of the improper and illegal practices that are often involved in postal subcontracting,” APWU Motor Vehicle Services Division Director Bob Pritchard said.

“APWU has protested USPS’ subcontracting practices for many years,” he said. “We have often pointed out that contractors’ bids are invalid. This settlement demonstrates one way subcontractors can afford to submit such low bids: They underpay their employees.”

USPS Refuses to Sever Ties

When the APWU learned of the violations, Northeast Regional Coordinator John Dirzius asked Area management if it planned to continue its current contracts with the company. In a Feb. 12 letter, the USPS said it did. “The fact that a contractor has been debarred does not mean that we have to terminate any existing contract,” a manager for the Area wrote [PDF].

“This is a shameful example of unethical and unlawful USPS contractors ripping off their employees,” Dirzius said. “Management’s response demonstrates the Postal Service’s complicity.”

Pritchard agreed. “The Postal Service does not seem to be interested in making sure their contractors conform to the law; they are only interested in eliminating jobs by contracting out work,” he said.

In his letter to postal management, Dirzius requested copies of all current contracts between the USPS and MT Transportation & Logistics Services, Inc in the Northeast Region. He is encouraging locals to monitor the expiration date of the contracts to ensure that the company is not awarded any new contracts for a three-year period. “The bottom line is that as a result of illegal and improper behavior by subcontractors, APWU members are being deprived of jobs,” he said.

Federal contract regulations require subcontractors to pay employees no less than the “prevailing wages” for the area in which they work. After a complaint was filed, the DOL found that the company and its officers had denied employees appropriate wages and fringe benefits, as mandated by the federal McNamara-O’Hara Service Contract Act.

“USPS subcontracting takes work away from postal employees and is inefficient,” Pritchard said. “The USPS claims to save money by awarding contracts to contractors, yet with skilled employees on site and postal equipment available, keeping the work in-house is much more efficient and practical.”

In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:

All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to
employees who had an approved compensable injury as determined by the Department of Labor.

According to the decision, Phase 1 of NRP consisted largely of reviewing the files and medical records of all these employees; where needed requesting updated medical documentation from the employee; and verifying that current work actually being performed matched the current job offer. According to the decision, Phase 2 consisted largely of canvassing facilities to identify work necessary for operations and functions, attempting to match the employee with the necessary work, and if none is found, notifying the employee that no work was available.

Class members argued one or more of the following complaints:

1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination.

The Postal Service filed an appeal from the certification decision.

Recently EEOC agreed with the AJ’s determination that the class should be defined as all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP since 2006. Therefore, the EEOC reversed the Postal Service’s order rejecting the class and ordered them to notify potential class members.

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The company and its principal officers also will be debarred from receiving future government contracts for a three-year period.

BAY SHORE, N.Y. — The U.S. Department of Labor will recover more than $1.8 million in back wages for more than 500 employees of MT Transportation & Logistics Services Inc., a trucking company based in Bay Shore, under contract with the United States Postal Service (USPS) to haul mail. The company and its principal officers also will be debarred from receiving future government contracts for a three-year period.

USPS mail haul contracts are subject to the prevailing wage and fringe benefits provisions of the federal McNamara-O’Hara Service Contract Act. The McNamara-O’Hara Service Contract Act requires contractors and subcontractors performing on federal service contracts in excess of $2,500 to pay service employees no less than the wage rates and fringe benefits found prevailing in the locality for the classification of work that they perform. The department’s Wage and Hour Division cited the company and the company’s officers for failing to pay their service employees the legally required hourly rates and fringe benefits.

“The laws governing prevailing wages and benefits on federal contracts grant clear protections to workers, and the Labor Department will continue to ensure that companies awarded federal contracts are following the rules,” said Secretary of Labor Hilda L. Solis.

In an administrative complaint filed with the Labor Department’s Office of Administrative Law Judges (ALJ), the Wage and Hour Division named as respondents the company, Anthony Alvarez as president, Andrew Meyers as vice president-sales, Della Herzog as vice president-finance and Terri Chester as controller/general manager. The ALJ approved a consent findings and order to resolve the complainant when the respondents agreed to pay a total of $1,830,800 in back wages and interest for the period from Dec. 1, 2005, to Dec. 31, 2008. The judgment also orders the company and the principal officers to be debarred from future government contracts for three years and to establish a compliance program to ensure future compliance with wage and hour laws.