{"id":3760,"date":"2022-06-28T14:19:05","date_gmt":"2022-06-28T14:19:05","guid":{"rendered":"https:\/\/fwhtlaw.com\/?post_type=briefing-papers&p=3760"},"modified":"2022-12-13T15:34:38","modified_gmt":"2022-12-13T15:34:38","slug":"joint-labor-management-safety-committees-under-the-mnosh-act","status":"publish","type":"post","link":"https:\/\/www.fwhtlaw.com\/blog\/2022\/06\/28\/joint-labor-management-safety-committees-under-the-mnosh-act\/","title":{"rendered":"Joint Labor-Management Safety Committees under the MNOSH Act"},"content":{"rendered":"

Jesse and Matt are members of the firm\u2019s Construction Law Department. Jesse can be reached at 612.359.7637 or jorman@fwhtlaw.com. Matt can be reached at 612.359.7611 or mnelson@fwhtlaw.com <\/span><\/p>\n

Introduction<\/em><\/span><\/strong><\/p>\n

            Construction jobsite safety is of utmost importance.  The work of constructing, operating, maintaining, and repairing the buildings, roads, and other structures comprising our built environment often involves risks and hazards that should be evaluated, monitored, and controlled to advance and promote jobsite safety.  Each and every laborer and craft person on the job should go home safe and healthy each and every night.<\/span><\/p>\n

            This much should not be controversial.  It also fairly describes the purpose of the Occupational Safety and Health Act of 1970 (the OSH Act), as well as the Minnesota Occupational Safety and Health Act of 1973 (the MNOSH Act).  The federal Occupational Safety and Health Administration (OSHA) administers and enforces the former, while the Minnesota Department of Labor and Industry (DOLI) administers and enforces the latter.<\/span><\/p>\n

            While the objectives of the OSH Act and the MNOSH Act overlap, the programs and compliance activities they each require of contractors sometimes diverge in important ways.  For example, the MNOSH Act contains lockout-tagout requirements beyond those found in the OSH Act, while other features of the MNOSH Act, such as AWAIR program requirements and employer-provided PPE, do not have federal analogues.<\/span><\/p>\n

            The subject of this article is another Minnesota-specific requirement in the workplace safety regulatory space: the MNOSH Act\u2019s safety committee requirement, and how DOLI interprets and applies it.  Importantly, failure to have a properly-constituted safety committee is citable as a \u201cserious\u201d violation of the MNOSH Act.  Contractors need to be aware of this requirement, and review their safety committee programs for compliance.<\/span><\/p>\n

Membership Requirements for Joint Labor-Management Safety Committees <\/em><\/span><\/strong><\/p>\n

            The MNOSH Act plainly requires most employers to have a \u201csafety committee.\u201d  Minn.  Stat.  \u00a7 182.676.  For example, \u201c[e]very public or private employer of more than 25 employees shall establish and administer a joint labor-management safety committee.\u201d  Minn. Stat. \u00a7 182.676(a).  In addition, public or private employers with 25 or fewer employees \u201cshall establish and administer a safety committee\u201d if their lost-workday incidence rate or workers\u2019 compensation premium classification rating exceed certain specified thresholds.  Minn. Stat. \u00a7 182.676(b).  The MNOSH Act and DOLI regulations that implement it also detail various safety committee administration, meeting, and record keeping requirements.<\/span><\/p>\n

            In addition, the MNOSH Act and related DOLI regulations address who should be on the committee.  On the one hand, the safety committee required of employers with more than 25 employees is a \u201cjoint labor-management\u201d safety committee.  However, as will be discussed in greater detail below, neither the MNOSH Act nor the DOLI regulations specifically define what the terms \u201clabor\u201d or \u201cmanagement\u201d mean in this context.<\/span><\/p>\n

            On the other hand, section 182.676(d) requires that \u201c[e]mployee safety committee members must be selected by employees.\u201d  In addition, Rule 5208.0030 requires that \u201c[e]mployee representatives on safety and health committees shall be selected by the employee\u2019s collective bargaining agent if one exists\u201d or, if not, then \u201cthe employee representatives shall be selected by their peers\u201d and the \u201cnumber of employee representatives on a safety and health committee shall equal or exceed the number of management representatives on the committee.\u201d<\/span><\/p>\n

            Notably, the MNOSH Act does expressly define the terms \u201cemployer\u201d and \u201cemployee,\u201d and contractors should keep these definitions in mind when reviewing or establishing their safety committees.  In particular, the term \u201cemployer\u201d includes \u201cany person who has the power to hire, fire, or transfer\u201d personnel, while the term \u201cemployee\u201d includes any person \u201cpermitted to work by an employer.\u201d<\/span><\/p>\n

I Say \u201cLabor\u201d While You Say \u201cEmployee,\u201d I Say \u201cManagement\u201d While You Say \u201cEmployer\u201d?  <\/em><\/span><\/strong><\/p>\n

            Failing to comply with the MNOSH Act\u2019s safety committee requirements is citable as a serious violation, and could prove costly.  A central part of contractor compliance is ensuring that its safety committee is properly constituted.<\/span><\/p>\n

            Importantly, contractors should be aware that DOLI has been known to enforce the \u201cjoint labor-management\u201d requirement for safety committee composition to mean that such committees must have both \u201cemployee\u201d and \u201cemployer\u201d members, even though the MNOSH Act does not expressly require employers to establish and administer \u201cjoint employee-employer\u201d safety committees.<\/span><\/p>\n

            This is a distinction that can make a difference. An example will help illustrate this point.  Suppose a contractor\u2019s \u201cjoint labor-management safety committee\u201d is composed of two union-member general superintendents, along with a project manager and a regional project executive.  Even though all four members have the power to hire and fire, and are thus technically \u201cemployers\u201d under Chapter 182, the safety committee arguably complies with the plain language of section 182.676(a).  The union-member superintendents are the \u201clabor\u201d members of the \u201cjoint labor-management safety committee,\u201d while the project manager and project executive are the \u201cmanagement\u201d members.  If there were \u201cemployee\u201d members on the committee, section 182.676(d) would require that they were selected by other employees.  But there aren\u2019t any \u201cemployee\u201d members, so this selection requirement is not a factor.<\/span><\/p>\n

            However, if \u201cjoint labor-management safety committee\u201d is construed, as DOLI does, to mean \u201cjoint employee-employer safety committee,\u201d the contractor\u2019s safety committee is noncompliant (because all members are \u201cemployers\u201d with the power to hire and fire) and the contractor may be cited with a serious violation of the MNOSH Act.  This is true, even if the contractor\u2019s (allegedly improperly constituted) safety committee regularly meets, develops and implements safety programming to foster a robust safety culture, and otherwise complies with other requirements of the safety committee statute.<\/span><\/p>\n

            In this example, the difference between compliance on the one hand, and a \u201cserious\u201d violation on the other, comes down to the interpretation of \u201clabor\u201d and \u201cmanagement\u201d as used in the safety committee statute.  Contractors need to be aware that, despite the plain language of the statute, DOLI interprets and enforces the safety committee statute to require that safety committees include \u201cemployee\u201d members.<\/span><\/p>\n

The Takeaway      <\/em><\/span><\/strong><\/p>\n

            It may seem clear enough that, had Legislature meant to say \u201cjoint employee-employer safety committee,\u201d it would have done just that.  But whatever the logic of this statutory interpretation, in our experience DOLI interprets and enforces subsection (a) as if \u201cjoint labor-management safety committee\u201d were synonymous with \u201cjoint employee-employer safety committee.\u201d  And we suspect DOLI\u2019s position would be the same with respect to employers of 25 or fewer employees that are required simply to have a \u201csafety committee\u201d under subsection (b) of the safety committee statute.<\/span><\/p>\n

            Contractors and employers should review their safety committee programs for compliance with not only the MNOSH Act\u2019s requirements but also DOLI\u2019s interpretation of those requirements.  \u201cSerious\u201d violations aren\u2019t reserved just for jobsite issues.  A contractor could have a well-developed safety committee and safety culture, but still be hit with a \u201cserious\u201d violation if the composition of its safety committee runs afoul of DOLI\u2019s interpretation of the safety committee requirements.<\/span><\/p>\n

 <\/em><\/span><\/p>\n

\n

Announcements<\/strong><\/span><\/p>\n

Join Fabyanske, Westra, Hart and Thomson, P.A.<\/strong> in congratulating Julia Douglass<\/a> for being newly elected to the Construction Law Section Council.<\/p>\n

Fabyanske, Westra, Hart & Thomson, P.A.<\/strong> has once again been recognized as one of \u201cThe Top 50 Construction Law Firms<\/strong>\u201d by Construction Executive<\/strong>, a leading construction industry magazine for construction firms.  Fabyanske, Westra, Hart and Thomson was the only firm in the Upper Midwest to be included in the list.<\/p>\n

Fabyanske, Westra, Hart & Thomson, P.A.<\/strong> has been ranked as a Band 1 Construction Law Firm in Minnesota<\/strong> by the well-recognized Chambers<\/strong> professional rating service.  Here\u2019s what Chambers has to say about FWHT:<\/p>\n

The team is known as \u201cEsteemed for its dedicated construction group, which brings deep industry insight to disputes, contract negotiations and planning issues. Represents diverse participants from the public and private sectors, including design professionals, insurers and subcontractors. Frequently acts on large-scale regional and national projects. Numerous attorneys within the team are well known in the sector, having been appointed to leadership roles at a variety of industry bodies.\u201d<\/p>\n

Ranked Lawyers:<\/p>\n