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Agencies Issue Bulk Hazmat Guidance

To clear up confusion regarding their requirements for bulk hazardous materials labeling and shipping, OSHA and the Pipeline and Hazardous Materials Safety Administration have published a joint guidance memo.

Four years ago OSHA modified its Hazard Communication Standard program to bring it into line with the United Nations Globally Harmonized System of chemical classification and labeling.

This involved major changes in placarding and labeling of hazmat cargo, and revisions of Safety Data Sheets and employee training requirements.

Because of the government agencies’ inadequate communications to the industry about the changes, widespread confusion resulted in delays in deadlines and enforcement (AA, 6-30-15, P 3).

On Sept. 9, OSHA and PHMSA released their joint guidance memo, titled “Labeling of Hazardous Chemicals for Bulk Shipments,” in an effort to clear up remaining confusion about which agency’s standards are applicable in certain situations.

Key points from the guidance include:

• The HCS labeling requirements are not applicable to shipping containers that are in transport.

• However, they do apply to the labeling of hazardous chemicals in the workplace, both before and after transportation in commerce.

• The HCS standard requires either labeling the container with hazard information or transmitting the required label so it is immediately available to workers when they receive a shipment. The HCS requirements are independent of whether the same material is subject to PHMSA’s Hazardous Materials Regulations labeling requirements during transportation, the agencies said.

• The display of a marking or label that conforms with the HCS is not a violation of the HMR.

• An HCS-compliant label and an HMR-compliant label may both appear on the same package

DOL to Survey Size of ‘Gig’ Economy

The Department of Labor’s Bureau of Labor Statistics will reintroduce and expand a nationwide labor survey not used for nine years to measure the extent of the independent contractor segment in the economy, and which DOL has specifically designed to target companies like Uber and Lyft.

The notice and comment request opened Sept. 30 describes in detail the proposed reintroduction and expansion of the Contingent Worker Supplement to the upcoming Current Population Survey, which is scheduled to take place in May 2017.

The CWS has not been used since 2005, when it was discontinued for funding reasons, note Ilyse W. Schuman and Michael J. Lotito, attorneys for the law firm of Littler Mendelson.

“Since then, the nature of employment has changed radically,” they point out. “Millions of Americans now work in alternative or contingent arrangements, including on-demand jobs, in the so-called ‘gig’ economy.”

By reviving the survey, DOL said it hopes to gather reliable statistics about the overall numbers and characteristics of these types of workers.

As indicated in the notice, the DOL also intends to add four new questions to the CWS. According to the DOL, “two questions will focus on whether individuals obtain customers or online tasks through mobile apps.”

These questions will elicit information about how on-demand workers are finding their jobs and connecting with customers.

Two additional proposed questions “will examine whether work obtained through electronic matching platforms is a source of secondary earnings.”

As the proposed questions could be used to inform policymakers about legislative and/or regulatory actions addressing service providers in the gig economy, the import of this BLS notice may be far beyond a mere survey change.

Employers may comment on the proposed collection of this information until Nov. 29.

Positive Drug Test Results on the Rise

Positive drug tests of employees have risen steadily between 2011 and 2015, a new study reveals.

The Quest Diagnostics Drug Testing Index, — an annual survey of workplace drug test results — examined nearly 11 million drug test results in 2015 and found that positive results made up 4% of the total.

Some of the most significant findings of the survey include:

• The rate of amphetamine, marijuana and heroin detection has increased every year for the past five years.

• About 45% of all U.S. workers who tested positive in 2015 showed evidence of marijuana use.

• Positive test results for heroin increased 146% over the last four years, while positive test results for oxycodone decreased slightly.

• Amphetamine positivity increased 44% since 2011.

• Marijuana positivity increased 26% since 2011.

• Post-accident positivity rates have increased 30% since 2011.

• In oral fluid drug testing, the overall positivity rate increased 47% since 2011, driven primarily by large increases in positive marijuana results.

• About 9% of job applicants could not pass a pre- employment hair drug test in 2015.

“Employers should take note of these statistics and ensure that their drug and alcohol testing policies address these issues adequately,” Quest Diagnostics said.

The company warns employers to make sure their drug testing procedures incorporate a test for the presence of the chemical 6-acetylmorphine, which will show heroin use.

Report: Hispanics Face Job Challenges

To deal with challenges facing Hispanic workers in the United States, policymakers, business owners and others need to invest in workforce development and education, a new report urges.

The Society for Human Resource Management and Congressional Hispanic Caucus Institute jointly released the report in mid-September.

“The greatest challenge that we must address is the alarming skills gap in the Hispanic workforce, where many Latinos are not prepared to compete for the jobs of today and tomorrow,” declared CHCI President Domenika Lynch.

“This important report provides employers effective ways to harness the power of diversity and engage Hispanic Millennials,” she added. “With these and other promising HR practices, workplaces will be more inclusive, productive and successful.”

J. Robert Carr, senior vice president at SHRM, said, “Organizations must adopt employment practices that leverage demographic change to the advantage of both employers and employees.”

The report said that among the ways employers can help are:

• Develop tools to support and improve educational and career outcomes such as structured pathways from college to certain jobs and mentoring to help address the lack of soft skills.

• Adopt training programs and apprenticeships for entry-level workers which are important anchors for success at many companies and are a way to address skills gap issues while cultivating talent for specific trade or skill areas.

• Create benefit designs that take into account the extended family make-up of many Hispanic Millennials in the workforce.

The report is available at http://tinyurl.com/j2jz6o3.

OSHA Sued Over Union Walk-Around

A small business organization has filed a lawsuit in federal court seeking to block OSHA’s attempt to grant unions increased access to non-union worksites during safety inspections.

The edict was issued in a guidance memo from OSHA that expressly permits employees who are not working under a collective bargaining agreement to designate a union representative to act on their behalf as their “walk-around representative” during an OSHA inspection.

The National Federation of Independent Business recently filed suit to challenge what it termed OSHA’s “illegal administrative expansion” of the “walk-around” right.

NFIB alleges that the real purpose of the change was to facilitate union access to open-shop workplaces.

The NFIB complaint notes that for more than four decades OSHA has construed the law as affording employees “a limited right to accompany an OSHA compliance safety and health officer during a workplace inspection.”

Before the guidance OSHA allowed its inspector to be accompanied by an “employee representative” described only as an employee of the employer whose workplace was being inspected.

In very limited cases OSHA might allow for third- party technical specialists to accompany the compliance officer when their presence would be deemed “reasonably necessary.”

NFIB told the court that OSHA’s previous interpretation of the walk-around right accurately captured the delicate legislative balance that was intended by lawmakers.

“Congress concluded that employees should be allowed to participate in inspections meant to protect their health and safety,” the bureau said.

“But Congress also recognized that this participatory right should not be used as a pretext to facilitate union access to proselytize employees of open-shop businesses,” NFIB explained.

Delving Deeper Into Holiday Forecasts

It probably doesn’t surprise you to learn that consumers are expected to spend more this Christmas, but some of the deeper trends might.

The National Retail Federation expects retail sales in November and December will increase 3.6%, up from the 3.2% rise in 2015 (AA, 10-15-16, P. 1).

Other predictions vary, with the outlier being the financial services and consulting firm PwC’s survey showing 10% growth this holiday season.

Consumers with annual household incomes less than $50,000 told PwC that they plan to increase their percentage of spending levels more than other income groups.

Jill Standish, senior managing director of retail at Accenture, which recently polled consumers, said, “The good news is that U.S. consumers plan to spend more and are increasingly willing to share personal information to receive offers – but they remain focused on frugal bargain hunting.”

Accenture says the most popular item for the holiday shopping season is, for the second consecutive year, apparel, which was cited by 78% of respondents, versus 69% in 2015.

The ever-popular gift card came in second, cited by 74% of respondents versus 64% last year, with restaurants being the most popular gift-card choice, cited by 57%, Accenture reports. (NRF does not include restaurants in most of its retail sales forecasts and surveys).

According to PwC’s poll, 42% of consumers say they would like to receive a gift card, followed by experiential gifts like travel and entertainment (31%), with physical gifts such as clothes and toys ranking last (27%) in preference.

While overall holiday spending will be higher, PwC also says 42% of those dollars spent will accrue to travel and entertainment. Consumers polled also say they increasingly prefer to receive gifts of travel and entertainment rather than tangible gifts.

Shoppers remain loyal to their hometown stores, with almost 75% telling PwC that they will turn to local retailers for shopping this holiday season.

The International Council of Shopping Centers also predicts that brick-and-mortar stores will enjoy a 3.3% year-over-year growth in sales this holiday season, compared to a 2.2% increase in 2015.

ICSC’s survey says 91% of shoppers are planning to buy at physical stores, citing reasons such as the ability to see, touch or try on merchandise (52%); the ability to get the item immediately (50%); not wanting to pay for shipping (42%); ease of returning the item (35%); and the convenience of one-stop shopping (31%).

ICSC notes that 59% of consumers say they will buy from Amazon, and 21% from other pure online retailers. In addition, 44% intend to buy online from retailers with a physical presence that will ship their purchases home, while 39% will spend online from retailers and then pick up the items in-store.

Omnichannel offerings could lead to more sales, Accenture says, noting that 71% of shoppers who plan to use the buy-online/pick-up-in-store option agreed that they are likely to purchase additional items during their in-store visits.

Accenture’s consumer survey also found that 50% say they will do most of their shopping online. Only 43% expect to do the majority of their shopping in- store, down from 48% last year.

Consumers continue to expect discounts and sales and have less inclination to buy at full price, all of the consumer surveys confirm.

Regardless of where they choose to shop, the speed and convenience of online shopping has raised the bar when it comes to consumer expectations.

“Retailers must provide consumers with a hassle- free shopping experience, whether they are shopping online or in-store,” Standish stresses.

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