Labor Commission Logo
On The Job Newsletter

Labor Commissioner Sherrie Hayashi

Commissioner's Corner

July 2nd marks the 50th anniversary of the signing of the Civil Rights Act of 1964. This piece of landmark legislation outlawed discrimination and ended segregation in schools, the workplace and public accommodation. Now 50 years later, although the landscape of the United States looks very different, the challenge of achieving equal opportunity continues to exist. Pay equity issues continue, particularly in Utah where women are paid 69 cents for every dollar paid to men, immigration and migration issues pose new challenges for the workforce, and access to overloaded state and federal agencies impose burdens both on employers and employees in navigating the administrative process. On this anniversary, it seems appropriate to consider our goal for the next 50 years. How do we reach the goal so eloquently articulated by Martin Luther King, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character." How we accomplish this goal is up to each of us.


TOUR - HUNTER POWER PLANT
DO YOU KNOW WHERE YOUR ELECTRICITY COMES FROM?

When was the last time you turned on your lights, started your dishwasher, or cooled or heated your house? Have you ever stopped and thought “Where does all this power come from? Is it magic? A nuclear reaction from flipping a switch? Or does it come out of thin air?” It’s not magic.

Early engineers weren’t wizards or witches. Rather, they were ambitious, inventive, and creative people dedicated to improving their lives and society. This is what they wanted and ultimately succeeded in doing. People have experimented with steam for centuries, but it was not until the end of the 19th and beginning of the 20th century that people discovered how to generate and harness great amounts of steam energy to produce electricity.

During the industrial revolution, engineers throughout the world were working on ways to convert chemical energy found in coal, wood and other carbon based materials into thermal energy that would produce and convert high pressure steam in large boilers to mechanical energy, which in turn rotates turbines and generators to make electrical energy. They did it, and the whole world benefited from their ingenuity, sweat, and hard work.

Touring Hunter power plant
Left to right: Edward Riggle- PacifiCorp, Scott Mecham-GOMB, Senator David Hinkins, Senator Scott Jenkins, Sherrie Hayashi, Representative Mark Wheately, Pete C. Hackford, Zackery King-Leg's Fiscal Analyst, Jaceson Maughan, Kent Houghton, Fritz Beacco- PacifiCorp, Les Thompson- PacifiCorp, Laren Huntsman- PacifiCorp.
Now, 129 years after the creation of the first practical steam boiler/turbine power generator, over 80% of the world’s electricity comes from these types of units. Some are nuclear fired, and some are fossil fuel fired, but all are steam generators in one form or another.

I would like to share with you an experience that a number of appointed and elected state officials had at the Hunter Power Plant in Eastern Utah recently. The Hunter Plant was named after E. Allan Hunter, a former president of Utah Power & Light Co., now Rocky Mountain Power (PacifiCorp), and was first commissioned in 1978. The Hunter Plant is part of a system that provides 1.7 million customers in the western United States with reliable and efficient energy.

On May 12, 2014, PacifiCorp Power graciously provided the Utah Labor Commission personnel, along with representatives from the Governor’s Office of Management and Budget, the Office of the Legislative Fiscal Analyst, and members of the Utah Senate and House, a tour of the Hunter Power Plant. After plant personnel briefed the group on the activities in the plant, we were then led into the plant’s operations center.

The Hunter Power Plant is essentially three "Mega" size boilers that are set on 1,000 acres of land. Each boiler reaches over 20 stories tall. These boilers can produce steam at 3,000 psi, with corresponding temperatures of 1,000 degrees Fahrenheit, and elevated firebox temperatures of 4,000 degrees. These boilers burn coal at a rate of 4.5 million tons per year and produce 1,320 megawatts of electricity to the national grid. The coal is provided by local Utah coal mines.

The group was clearly in awe of the physical size of these massive boilers and the important role they play in our way of life. Many thanks to the Hunter Plant for allowing us to tour their facility and see where our electricity comes from.


NEW EEOC PUBLICATIONS

Religious Garb and Grooming in the Workplace
The Equal Employment Opportunity Commission recently issued a very helpful publication entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities”. This document provides guidance and answers to questions about how the federal employment discrimination law applies to religious dress and grooming practices in the workplace.

Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against someone because of their religion. This law requires that employers make reasonable accommodations for sincerely held religious beliefs including dress and grooming practices.

This publication helps employers and workers understand the legal protections provided by the law and how those protections might apply to their individual circumstances. The publication can be found at: http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

Background Checks – What Employers Need to Know
The Equal Employment Opportunity Commission also has issued a joint publication with the Federal Trade Commission on the use of background checks. The publication is entitled “Background Checks - What Employers Need to Know.”

Any time an employer uses an employee’s or applicant’s background information to make an employment decision, regardless of how they have obtained that information, they must comply with federal law. Some basic principles to consider include making sure you treat everyone the same. Disparate treatment of any applicant or employee can give rise to various problems for an employer. Furthermore, an employer must take special care when basing an employment decision on specific background information which may be more common among people of a certain race, or that may have been caused by a disability. The publication can be found at: http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm.


Introducing Dr. Biggs

The Adjudication Division is pleased to announce that we have hired a medical director to help with the medical panel process. Jeremy J. Biggs, MD, MSPH, is the medical director for the University of Utah Occupational Medicine Clinics, the Rocky Mountain Specialty Services Clinic and the Utah Labor Commission Adjudication Division.

As medical director for the Labor Commission, Dr. Biggs' focus is on the recruitment of qualified specialists to serve on medical panels, and provide training on an ongoing basis to panel members. Dr. Biggs will also meet regularly with all participants in the medical panel process, in order to find areas where it can be improved.

As we complete the recruitment of additional medical panel members, the Adjudication Division will have a more extensive breadth and depth of administrative law judges to choose from to provide their expertise for cases adjudicated by the Division, which will speed up the medical panel process at the same time.

The medical panel training will focus on improving consistency in medical panel reports and implementation of a more effective process to decrease the appearance of bias. One of the first areas Dr. Biggs will discuss with the medical panel members is a concept of “show your work.” For example, as the medical panel writes the reports and answers questions, they will also explain their logic to the judges, thus serving as a training opportunity, and at the same time clarifying any ambiguity in how the medical panels arrive to their medical conclusions.

Finally, regular meetings with all participants in the medical process will assist Dr. Biggs in obtaining an understanding of issues and address them early, allowing for further process improvements.

We welcome your suggestions, questions and concerns about the medical panel process. Please contact Dr. Biggs at jbiggs@utah.gov.


Labor Commission logo

The Adjudication Division’s Southern Utah Office is Moving!

We are very pleased to announce that we will be moving from Parowan to St. George this summer. The new property is in the Blackridge Terrace Office Building, 1173 South 250 West, Building 1, Suite 304, St George, UT 84770, conveniently located about a block off the Bluff Street exit of I-15.

St. George officeAlthough the space is nearly move-in ready, there is some simple remodeling that needs to be done to turn a large work room into a courtroom. We anticipate that we will be closing the Parowan office and moving into the new location sometime in August. Please see the Commission’s website and Facebook pages for updates on our move.

If you have hearings already scheduled for Parowan this summer/fall, the Division will be sending you notice of the new location; but keep in mind that hearing dates should not change.


June - Workplace Safety Month

During the month of June, the Utah Labor Commission and Utah OSHA participated in several events to create awareness and promote safety and health in Utah’s workplaces.

National Safety Stand-Down to Prevent Falls in Construction
During the week of June 2 – 6, Utah OSHA reached out to employers in the construction industries and asked them to participate in the National Safety Stand-Down to create awareness among their employees regarding fall hazards, which account for the highest number of deaths in the construction industry. In 2012, there were seven fatalities in this industry in Utah, and two of the seven were caused by falls to a lower level. Additionally in 2013, eight construction workers were fatally injured and two of the fatalities were from falls.

Safety Week at the Capitol
In support and recognition of Utah Safety Week, Labor Commission staff participated in activities by attending the World’s Largest Safety Demo, Sponsored by Senator Karen Mayne, at the State Capitol. On the same week, Utah OSHA Compliance Officers and Consultants visited locations around the Salt Lake City area passing out workplace safety and health literature and CDs to area businesses.

Young Worker Safety & Health Emphasis 2014
During the summer months, the youth labor force--16 to 24 year-olds--who are working grows sharply between April and July each year. During these months, large numbers of high school and college students take summer jobs, and many graduates enter the labor market to look for or begin permanent employment. In 2012, 361 youth workers were fatally injured nationwide.

Fatal work injuries involving workers less than 16 years of age nearly doubled, rising from 10 in 2011 to 19 in 2012—the highest total since 2005. Fatal work injuries in the other age groups declined in 2012.

In an effort to increase awareness of the importance of teen summer job safety, the Utah OSHA Consultation and Education Services Section, provides numerous links to some of the most frequently asked questions for youth employment.

Campaign to Prevent Heat Illness in Outdoor Workers
An area of emphasis during June and throughout the summer months for Utah OSHA is the campaign is to raise awareness of the dangers of working in the heat.

This year Utah OSHA is focusing on acclimatization, the physical change that the body undergoes to build tolerance to the heat. To acclimatize, workers should get used to hot environments by gradually increasing exposure, by taking frequent breaks for water and resting in the shade. During a rapid change from cooler to hotter weather, even experienced workers need time to acclimatize.

OSHA has found that heat illness prevention programs, which can help prevent illness and death, were often non-existent in worksites, or missing key elements such as acclimatization techniques or the need for providing potable water to workers. According to OSHA, new and temporary workers are particularly at risk for heat-related illnesses. They also found that in recent years, the lack of acclimatization led to serious heat illness or death in 74% of OSHA citations around the nation.
_________________________

These are just a few examples of Utah OSHA initiatives which will help us create safety and health awareness in the workplace through high visibility outreach and promotion, and through actively providing information to the public.

Social media is also an important tool in getting safety messages out. Resources about these and other safety initiatives are available on the Labor Commission’s Facebook page https://www.facebook.com/UtahLaborCommission or by visiting our website at http://laborcommission.utah.gov/divisions/UOSH/index.html.


The State of Utah 2014 Governor’s Award for Excellence

Tonya Gallegos received the 2014 Governor’s Award for Excellence for Outstanding Public Service. Tonya is the Deputy Director of the Industrial Accidents Division and also acts as the division’s Presiding Officer, as well as the division’s business analyst and project manager for a number of projects.

She received the award specifically for the outstanding work she has done as the project manager for the Division’s largest project, the Electronic Data Interchange program.

About EDI
The Division of Industrial Accidents is mandated by the Workers’ Compensation Act with receiving and documenting all records pertaining to workplace injuries. This represents an average of 110,000 documents on 55,000 injuries per year. These documents were previously received, coded, and filmed, translating to almost 80 hours of staff time per week, creating a large and cumbersome drain on resources and an inefficient use of limited staff time.

Other states were in the process of incorporating an electronic reporting system pursuant to national standards, and the Industrial Accidents Division felt it was time for Utah to follow suit. Unfortunately, most states had the resources to either hire an outside firm or to incorporate this very large project into their DTS working group, but Utah did not, so our only recourse was to hire a project manager who had the requisite experience of insurance processes and information technology expertise to direct this project. Tonya Gallegos was hired with the intention to acclimate herself to our workers’ compensation process, and eventually take over our fledgling EDI project.

Over the past few years Tonya has dedicated the majority of her time to this project developing implementation guides, detailed claim tables with edit matrixes, various rules for all processes and policies and procedures. She also has worked very closely with a number of IT staff, held educational meetings and webinars, worked overtime hours and weekends, has had numerous internal meetings, and addressed a number of developmental issues and delays. She never seeks recognition or boasts about what she does, and works with quiet confidence and determination.

Tonya Gallegos receives Excellence Award from Governor Gary HerbertLeft to right: Commissioner Sherrie Hayashi, Tonya Gallegos, Governor Gary HerbertAs a result of her hard work the first phase of EDI was completed last year with approximately 35,000 documents now being filed electronically and thus freeing up staff time to better address the public’s needs. Tonya is now overseeing the development of phase 2 of the project.

This project could not have been accomplished without the support of Labor Commission leadership, including Commissioner Sherrie Hayashi, our IT group, and with necessary support provided by appropriation budget requests. Overall, this project represents a necessary cost effective program which not only greatly increases the efficiency in which we can document injuries, but also enables us to devote more resources, time, and energy to directly meeting the public’s needs.

Tonya has exemplified what it means to be a dedicated state employee and is very much deserving of this award. Congratulations Tonya!


President Lyndon Baines Johnson

The Civil Rights Act of 1964

50 years ago, on July 2, 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law. This landmark piece of legislation signaled the beginning of a new era in how the law would address the grievances of those who were treated differently simply because of their race, skin color, religion, or national origin. The long title to the Act states:

An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

One important aspect of the Act was Title VII which outlawed discrimination based on race, color, religion, national origin, and sex in employment. President Lyndon Baines Johnson and Martin Luther King, Jr. As President Johnson said in a speech to the American people shortly before he signed the Act into law:

The purpose of this law is simple. It does not restrict the freedom of any American so long as he respects the rights of others. It does not give special treatment to any citizen. It does say the only limit to a man’s hope for happiness and for the future of his children shall be his own ability.1

Utah passed its own version of the Act in 1965 by enacting the Utah Antidiscrimination Act, which also prohibits discrimination in employment based upon race, color, national origin, religion, sex, pregnancy, and disability. The Utah Antidiscrimination and Labor Division has been charged with the enforcement of that Act.

The Utah Antidiscrimination Act is similar to the Civil Rights Act of 1964 and because of that similarity, the Division has a Work Share Agreement with the Equal Employment Opportunity Commission that allows the Division to investigate allegations of discrimination in employment in violation of both Acts.

The mission of the Utah Labor Commission is to achieve safety in Utah’s workplaces and fairness in employment and housing. Utah Labor Commissioner, Sherrie Hayashi, has said, “Utah’s workforce is one of its most valuable resources. The Utah Labor Commission has been given the charge of leading the way in achieving safety and fairness in the workplace. We pledge to provide the services and information to help keep business in Utah among the best in the nation.”

The Civil Rights Act of 1964 and the Utah Antidiscrimination Act of 1965 provide the legal tools for the Division and the Utah Labor Commission to achieve its stated mission of achieving fairness in employment and on this, the 50th anniversary of the Civil Rights Act of 1964, it is a good time to reflect upon where we as a nation have been and where we as a nation want to go in our treatment of one another.

_____________________

1Title: Remarks upon Signing the Civil Rights Bill (July 2, 1964) Lyndon Baines Johnson.theora.ogv Author: Miller Center of Public Affairs. Date: 2 July 1964


Judge's gavel

Appellate Decisions

This quarter, the Utah Court of Appeals issued two decisions involving Labor Commission cases. The full text of these decisions is available at www.utcourts.gov/opinions/. The decisions issued by the court this quarter dealt with the Utah Workers’ Compensation Act.

Swift Transportation and Ace American Insurance v. Labor Commission and Paul McClendon (2014 UT App. 104; issued May 8, 2014).

Mr. McClendon worked for Swift Transportation as a mechanic. In October 2004, he was working for Swift on a refrigerated trailer when he climbed up a ladder to check a Freon indicator on the trailer. The Freon indicator blew causing Mr. McClendon to fall off the ladder and onto a pile of iron tubing and other pieces of metal. He briefly attempted to return to work, but he experienced a black out and cognitive problems that interfered with his duties. Mr. McClendon filed a claim with the Labor Commission for permanent total disability compensation stemming from his work injuries. The ALJ held a hearing and referred the medical aspects of the claim to an impartial medical panel. The medical panel explained that Mr. McClendon’s head injury would result in “very few work restrictions.” However, the panel also found the accident exacerbated certain of Mr. McClendon’s pre-existing cognitive difficulties and resulted in a few other restrictions. The ALJ relied on the panel’s opinion and found Mr. McClendon was entitled to a preliminary award of permanent total disability compensation subject to the employer’s right to submit a reemployment plan. Swift and its insurance carrier appealed the award to the Commission, which affirmed the ALJ’s decision. The Commission’s decision was then appealed to the Utah Court of Appeals, where Swift argued that the Commission improperly substituted its opinion of the medical evidence for the report of the medical panel. The court upheld the award of permanent total disability compensation to Mr. McClendon after holding that, contrary to Swift’s arguments, the Commission’s factual findings were not inadequate and that Swift had not identified any other error in the Commission’s decision.

Rene Borja v. Labor Commission, Wal-Mart (2014 UT App. 123; issued May 30, 2014).

Mr. Borja was working for Wal-Mart pulling a large pallet of store merchandise when he felt pain in his legs and low back. He filed a claim for benefits with the Labor Commission and the parties agreed to facts that would be referred to an impartial medical panel. The medical panel noted Mr. Borja’s pain responses were exaggerated with non-physiological findings and also noted Mr. Borja has positive Waddell signs potentially indicating a non-organic component to chronic pain in his low back. The medical panel concluded that the accident resulted in a permanent aggravation of preexisting spine problems, but that surgery was not warranted due to the work accident. Mr. Borja objected to the medical panel’s report and argued that a hearing on the report was necessary before it could be admitted into evidence. The ALJ declined to hold a hearing on the medical panel’s report and awarded the medical treatment recommended by the panel to Mr. Borja. Both parties sought review of the award, which was affirmed by the Commission. Mr. Borja then appealed the denial of additional medical treatment to the Utah Court of Appeals, arguing that the medical panel misapplied the criteria for Waddell signs and that a hearing on the medical panel’s report was necessary. The court explained that it was not an abuse of discretion to deny a hearing on the medical panel’s report because Mr. Borja’s proffered conflicting evidence pertained to the validity of Waddell signs and the panel did not base its opinion solely on such criteria. The court found that the medical panel’s report was properly received into evidence and upheld the Commission’s decision.


Law book

Rules Corner

Rule 602-2 Labor Commission - Adjudication Rules, Effective April 22, 2014

R602-2-1. Pleadings and Discovery. This rule update is intended to improve judicial economy and efficiency regarding Commission decisions. This update imposes an obligation on parties to respond in a timely and appropriate manner to discovery requests notwithstanding the rule’s disclosure requirements. It also imposes updated deadlines for responsive pleadings and also imposes page limits on pleadings before the ALJ and on motion for review. This update also provides that an ALJ will not consider any arguments on pages that exceed the page limit. A party may move to file an over-length memorandum. It also limits the number of memoranda that may be filed before an ALJ on an issue to one supporting memoranda, one opposing, and one reply. This update also provides that the Commission and Appeals Board may disregard argument or other writing contained on pages exceeding the page limit. Parties before the Commission or Board may not move to file an over-length memorandum.

R602-2-2. Guidelines for Utilization of Medical Panel. This rule update provides guidance for filing objections to medical panel reports and any corresponding responses. This update also imposes deadlines and page limits on these pleadings. This update also provides that an ALJ will not consider any arguments on pages that exceed the page limit. A party may move to file an over-length memorandum. It also limits the number of memoranda that may be filed before an ALJ to one objection, one response, and one reply.

Rule 616-3-3 - Boiler and Elevator Safety, Effective May 22, 2014

Safety Code for Elevators. This update adopts the 2013 edition of the American Society of Mechanical Engineers (ASME) /CSA B44-10, Safety Code for Elevators and Escalators and the 2011 ASME A18.1, Safety Standard for Platform Lifts and Stairway Chairlifts. These standards are updated on a regular basis to ensure uniformity between Utah’s standards and those national standards related to safety in the elevator industry.