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Blast Elicits Call For Safety: Since the Daytona Accident, Lawmakers Want Federal Rules to Cover Public Workers.
Etan Horowitz
Sentinel Staff Writer

March 14, 2007
TALLAHASSEE -- State and federal lawmakers said Tuesday that they want to extend federal safety standards to all public employees in an effort to prevent accidents like last year’s deadly wastewater explosion in Daytona Beach.

The calls for action came on the day a federal safety board released its final report on the Daytona Beach accident, which found that the city’s inspection and safety programs were inadequate.

“I think it is absolutely essential that we avoid having a such a horrible accident happen again,” said state Sen. Evelyn Lynn, R-Ormond Beach, who represents the area where the accident occurred. “The sooner we can put in place those requirements, the better off we will be.”

It’s too late to file a bill for this year’s legislative session, but Lynn said she wants to add an amendment to an existing bill that would make federal safety regulations mandatory for Florida public employees. If that doesn’t work, Lynn said she plans to file a bill next year.

On Jan. 11, 2006, Eric Johnson, Clyde Jones and Michael Martin were repairing a hurricane-damaged roof at the Bethune Point Wastewater Treatment Plant. The roof was above a tank containing methanol, a highly flammable chemical. Sparks from a cutting torch ignited fumes, causing an explosion. Jones and Johnson were killed, and Martin was permanently maimed.

Unlike private agencies, public employees in Florida are not subject to the regulations of the U.S. Occupational Safety and Health Administration, the federal agency to prevent work-related illnesses and deaths. It’s up to each state to set safety standards and training procedures for its city and state workers. Florida is one of 26 states that lack a mandatory program for public employees that meets OSHA standards.

Instead, cities, counties and other public agencies are supposed to “voluntarily comply” with the federal standards. The board found that in addition to the Daytona Beach accident, there have been 33 chemical incidents at public facilities in Florida in the past five years, all of
which might have been prevented if the federal standards were in place.

“It has been shown and demonstrated that the voluntary program has failed in that these workers have died as a result of a lack of training, a lack of oversight and a lack of minimum safety requirements,” said William Wright, a member of the U.S. Chemical Safety Board, the federal group that released the report Tuesday.

The safety board recommended that the Legislature enact at least the minimum safety standards required by OSHA. Florida used to comply with the OSHA standards for public workers, but the state safety program was eliminated in 2000. Wright and other safety-board officials did not know why the program was eliminated.

 
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Also Tuesday, U.S. Rep. Rob Andrews, D-N.J., the chairman of the Health, Employment, Labor and Pensions subcommittee, announced the Fairness for State and Local Workers Act, which would extend the OSHA safety standards to state, county and municipal employees.

“For far too long, thousands of state, county and city workers have not been covered by the workplace health and safety standards that protect private-sector employees,” Andrews said in a statement that cited the Daytona Beach explosion.

“This plan simply requires all workplaces abide by the same safety and health standards and provides public employees the protections everyone deserves.”

One obstacle to the state proposal could be the cost of meeting the regulations, especially in a tight budget year. Lynn and safety-board representatives did not know how much it would cost the state a year to meet the OSHA standards.

The board also said that since the legislative session has already begun, state lawmakers may not be able to make changes this year. So in the meantime, the safety board asked the city of Daytona Beach to enact the federal OSHA guidelines.

Daytona Beach officials would not comment on the board’s recommendation because of pending lawsuits against the city by the victims’ families. Since the accident, the city has hired a safety officer to improve employee training and safety standards.

Alma Gonzalez, the special counsel for the American Federation of State, County and Municipal Employees in Tallahassee, said meeting the federal standards is essential, no matter the cost.

She also said her group is asking Gov. Charlie Crist to sign an executive order that would immediately require state employees and workers at state universities to be covered by the OSHA standards. Gonzalez said this would be a good first step toward encouraging the same protection for all public employees in Florida.

Erin Isaac, a spokeswoman for Crist, said she did not know if a formal request for an executive order had been submitted to the Governor’s Office. She could not comment on the request because she did not know the details of it.

“We are a large state, and the safety of workers ought to be a concern,” Gonzalez said. “Clearly, we cannot afford to have more people die.” Print article. . .

Artilce reprinted with persmission. Allrights reserved. Etan Horowitz can be reached at ehorowitz@orlandosentinel.com or 386-851-7915.shorter version ran in Final Edition Copyright © 2007, Orlando Sentinel

 

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EMAILS: RISKY BUSINESS
Leonard J. Dietzen, III
Rumberger, Kirk & Caldwell, P.A.

Does your agency recognize email as both an incredibly powerful and incredibly dangerous tool?
Juries and judges have weighed in and their verdict is clear: emails are risky business, resulting in multimillion dollar verdicts, huge settlements aimed at preventing public embarrassment, and the ruin of numerous successful careers. Almost 90% of all business communication is now conducted electronically - through email, instant messaging, and PDAs. In most cases, this communication is happening with minimal agency direction or guidelines, without formal policies, and with little or no training. As a consequence, every employer and all Human Resource and Risk Management staff must seriously consider the liability that comes with the ease of creating, sending, forwarding, filing, or hiding an email. Have you?

Your answer to that question will probably need a few hours of consideration, obviously beyond the scope of this article. In the next few column inches, however, you can learn how to avoid - - and help your employees avoid - the top ten email blunders.

GraphicMistake #1. Sending confidential or sensitive emails.

The most important idea you can take away from this article is that no email is confidential. There is no telling how many times your email will be viewed by people other than the intended recipient once you hit the “Send” button. Not only can your confidential email be made public, but your personal information, such as your email address, can easily also be made known to an unlimited audience with a single click on “Forward.” Consider emails as cyberspace postcards, able to be read by many as they travel – unfettered by postage - through the worldwide web.

Because emails can be considered permanent legal documents, before pressing the send button you should also ensure that the content within does not make an admission against your company, contain a legal conclusion as to fault or liability, or involve trade secrets. Likewise, adverse employment decisions should never be discussed in emails. Many companies and agencies are required by Federal and State law to preserve or archive records, something that further necessitates the need for extreme caution. It’s also important to remember that your computer hard drive can be subpoenaed in a civil or criminal court case - - and technology experts tell us that even erased documents can be recovered.

GraphicMistake #2. Forwarding an inappropriate email to a coworker, friend or customer.

This is no laughing matter. When you receive an email that contains off-color humor, offensive language, or pornographic material, you have no choice other than to report the email to your immediate supervisor. By forwarding this type of email to coworkers or friends you are affirming its content and exposing your company to potential liability. All employees have a duty to police the company’s email policy, so these types of emails should never be shown to coworkers. In some cases already settled with adverse decisions, inappropriate emails were offered as proof of a hostile work environment.

Offensive emails have also been used to support allegations of discrimination. All Federal and State laws that relate to discrimination can be violated, not only by in-person contact, but by emails as well. Moreover, the sharing of the inappropriate email to a friend or third person outside of the company can demonstrate a lack of professionalism and end up on the front page of a newspaper. Unfortunately, any email from your company’s address will be seen as representing your company. As a result, although an employee may be held personally liable for sending inappropriate emails, he or she may expose your company to an expensive lawsuit as well.

Discrimination suits often result in extensive discovery, which will likely seek years of company emails that can be used to demonstrate the culture of the organization at the time the events occurred. Hence, there is no such thing as an email “water cooler” discussion. Emails are permanent records with legal consequences.

GraphicMistake #3. Sending emails when angry or in an emotional state of mind.

Emails are written quickly and delivered almost instantly. Often, when in an emotional state of mind, even the most professional business person will not take the time to reflect and respond in a calm, sensible manner. I suspect that everyone reading this article has been on the receiving end of a “shouted” message. (This occurs when the writer uses all caps.) Even if you’ve been “shouted” at in an email, however, take time to carefully word your reply as it may next be seen as a courtroom exhibit or may be read by numerous, unintended readers. Remember again, an email is like a postcard. Do you want the world to read it?

GraphicsMistake #4. Failing to stick to the point or proofread.

Emails are often treated as informal notes or idle chitchat. However, because emails are official business documents, they should be treated with the same care as letters drafted on your company’s letterhead. Emails have a dual; burden: they represent your company and can live on forever. Short, precise and clear emails give your company a professional image. Conversely, long, rambling emails reflect poorly on you and your organization and, perhaps equally damaging, are often not read. Many recipients would rather you just call them. It is almost impossible to reply to an email that rambles on and contains several questions within its text.

Be sure to edit out all extraneous information, stick to the matter at hand, always spell-check, and proofread carefully for proper grammar. A good rule of thumb is to consider an email to be one-topic only. As more and more diverse ideas are incorporated, the message becomes harder to read, understand, and respond to.

GraphicsMistake #5. Disclosing your company’s email address to friends or for other personal reasons.

Often friends will save your email address when you send them a personal email from your company’s address. Or your pithy email may just be too good not to share. Your address can easily and innocently be added to a group list and then subjected to many unwanted jokes and/or messages unrelated to work. Moreover, every time your friend sends a group email with your address on it, others have access to the address and can send you commercial offers, inappropriate jokes, or spam.
For the same reason, requesting charitable solicitations or political contributions from your company email address is never acceptable. (If you work for a public agency, there are additional prohibitions to using your agency email for a political purpose.)

GraphicsMistake #6. Opening attachments from unknown senders.

Attachments may contain viruses that can cause expensive down time, damage your computer, or even harm your entire computer network. A good rule of thumb is to never open an attachment if you do not personally know the sender. When in doubt, ask your IT department to scan the attachment for viruses.

GraphicsMistake #7. Responding immediately to every email.

With a daily average number of emails hovering at 60 for many corporate email users, it is almost impossible and extremely unproductive to answer emails as they come into your email server. Instead, schedule specific periods of times in your work day to review and respond to emails. Reading emails can be addicting, but not all emails are important. The constant interruptions caused by workers sending and responding to personal emails can result in a staggering loss of productivity. If those emails are personal and not business related, the problem is compounded significantly. Employers pay employees to work, not review personal email accounts!

 

GraphicsMistake #8. Accessing personal email accounts from your company computer.

While sites such as Hotmail, Yahoo and AOL are becoming more secure, they still are the sources of destructive viruses and unwanted spam. Accessing your personal email account exposes your organization to unnecessary risk and could even result in a personal financial liability. Do not forward your work emails to your personal accounts for similar reasons. There is no legitimate business reason to forward your professional emails to your personal email account.

GraphicsMistake #9. Using the “high priority” option for “normal” communication.

Obviously, not every email is high priority or urgent. Just like the boy who cried wolf, if you overly use this function, you may be ignored when you truly have an important matter that needs immediate attention. At the opposite extreme, if an email is time-sensitive or urgent, do not assume the recipient is waiting by his/her computer to take action. Instead, use the telephone to convey your important message or to ensure that the person is there to receive your email and respond accordingly.

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Mistake #10. Sending spam email.


Spam is the sending of multiple copies of the same message in an attempt to force the message on people who would not otherwise choose to receive it. Florida law prohibits the sending of spam emails. Penalties of up to $500.00 per email message can be assessed.

Avoiding all of these mistakes will improve your email communication and help to reduce the risks associated with using email. But avoiding these mistakes is only the first step in limiting your liability!

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DOES YOUR COMPANY NEED AN EMAIL POLICY?

Yes! In the same way that the human resources community began grappling with the rise in sexual harassment and race discrimination claims in the 1980’s and 1990’s, organizations are just beginning to come to terms with the issues created by the ubiquitous use of email. The solutions that were then created out of necessity are now time tested: Every organization must (1) develop policies to target inappropriate behavior, (2) train employees on the policies, and (3) take swift disciplinary action for those who violate known policy. Consistent enforcement is the key not only to employee compliance with the policies but also to limiting liabilities.

Those liabilities are very real. A recently released survey by the American Management Association found that 26% of private-sector employers have already fired workers for email misuse. With Florida’s broad public records law, there is little doubt this number would rise for public-sector employees, who must electronically “bare all” upon receipt of a public records’ request. In another survey (The Radicati Group, 2006) over 70% of respondents stated they have received an email message that they considered offensive at their work email account. Not coincidentally, the Federal Rules of Civil Procedure have been amended to mandate that companies and agencies archive their electronic data (including emails) for access in litigation. These new amendments will no doubt be fertile gold mines in litigation for disgruntled customers or ex-employees.

Email Policies Prevent Liability
So what do you need to do? A comprehensive email policy is the first step toward protecting yourself and your organization.

At a minimum, every email policy must include the following key assertions:

  • The company owns the computers, cell phones and PDAs and employees have no expectation of privacy when using company equipment.
  • The issuance of a password does not give any employee the expectation of privacy. All emails or instant messages may be monitored at any time.
  • Employees may not install personal passwords on company computers.
    All company email policies and guidelines remain in effect if an employee is conducting official company business on personal computer equipment, laptops, cell phones, and PDAs.
  • Emails are not confidential.
  • Employees may not open attachments from unknown third parties.
  • All emails can be forwarded and their message can be altered without the author’s knowledge or consent.
  • The email address of the company is owned by the company. No personal use of company email address is permitted.
    Florida and Federal laws regulate certain computer use (sending of spam or pornography).
  • The personal use of email that will be allowed at work is limited to ____.
    All employees have a duty to report inappropriate emails or other policy violations to their supervisors.
  • The sharing of passwords is prohibited.
    Acceptable email use includes: (set forth clear examples).
  • Prohibited email use includes: (set forth clear examples).
  • The company may monitor all computer, cell phone, and PDA usage for quality assurance and compliance with its policies.
    Employees are prohibited from changing or rewording the disclaimer in any manner. (Provide one uniform legal disclaimer to be included on all emails.)
  • Any violation of the email policy may result in denial of access to computer use or disciplinary action up to and including termination.
  • The employee has read and agrees to comply with all guidelines set forth in policy and the failure to do so may result in disciplinary or legal action. (Signature is required.)

If you do not have such a policy in place, you would be well-advised to consider developing one as quickly as possible.

Need for Training on Email Policy
Policies alone never suffice, especially if your email policy is just one of many in your organization’s policy and procedure manual. That’s one reason why training is critical. Effective training of your entire workforce on your company’s email policy will pay big dividends and could also be the difference between a successful or unsuccessful outcome in a civil or criminal proceeding. Obviously, there are several methods to deliver training to your company’s employees, including classroom training delivered by internal staff. Web-based training provides a cost-effective alternative that allows employees to train at times that are most convenient for the organization and that fit in with busy schedules. Another advantage of web-based training is that it produces quantifiable results that can be tracked to serve as a defensible record that training occurred. Happily, my experience has been that most employees are willing to follow a policy once they are taught the specifics of it. For those who fail to follow policy, however, swift consequences must follow.

CONCLUSION
Emails are an effective and necessary means of communication. Like every tool, however, email must be used appropriately, and with a nominal amount of healthy caution. If you implement an email policy, train all staff on that policy, and enforce the policy fairly, chances are the next front page story in your local paper won’t be an embarrassing article featuring your company email. Print article . . .

Leonard J. Dietzen, III, is a partner in the law firm of Rumberger, Kirk & Caldwell, P.A. Leonard exclusively represents management in all aspects of employment law and recently co-authored an on-line course titled, “Avoiding Email Pitfalls.” LDietzen@Rumberger.com.

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