Is lack of lockout/tagout to blame for worker’s death in elevator shaft?

Firefighters who responded to a Florida resort to recover the body of a worker crushed by an elevator noticed a key safety step may have been missed while the employee was in the elevator shaft.

Mark Allen Johnson, an employee of SWS Environmental Services, was killed when an elevator at the TradeWinds Island Resorts in St. Pete Beach, FL, dropped onto and crushed him.

The resort had hired SWS to clean up water at the bottom of the shaft.

According to TampaBay.com, firefighters who arrived on the scene almost immediately noticed the missed safety step.

A hotel staffer had locked the elevator car on the upper floor before Johnson and an SWS co-worker started cleaning the bottom of the shaft. However, main power to the elevator itself wasn’t completely turned off.

“According to our technical rescue team on scene, that elevator was not locked out,” said Lt. Joel Granata of St. Petersburg Fire and Rescue. There’s no explanation yet about why the elevator car dropped while the maintenance was going on.

OSHA and the county sheriff’s department are investigating.

Qualified person supervising?

Local news coverage of the fatality uncovers another potential problem.

A spokeswoman for Florida’s Department of Business & Professional Regulation said anyone working inside an elevator or hoistway must either be a Certified Elevator Technician of under the supervision of one. Johnson wasn’t certified. It’s not known whether his co-worker was or not.

The President of TradeWinds said at this point the resort doesn’t know exactly how the death occurred. Just two days before, a private inspector looked at the resort’s elevators, and all of them passed.

However, a state inspector who investigated after the death found 13 violations.

Elevator deaths each year

The Census of Fatal Occupational Injuries says being struck by an object (mostly elevators themselves) is the third most common cause of fatalities for construction employees working on elevators. The most likely cause of death: falls. Second most likely: caught in or between elevators and shafts. Other causes of these deaths include elevator collapses and electrocutions.

In 2011, there were 38 deaths related to elevators in the U.S. according to the Bureau of Labor Statistics.

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More employers perform checks before hiring

By LISA BROWN lbrown@post-dispatch.com 314-340-8127

If a lawsuit or prior arrest is part of your past, your new employer increasingly wants to know.

As the economy improves and companies add to their ranks, many are taking the opportunity to revamp their hiring processes. And, with many people still out of work and vying for a limited number of jobs, employers can be pickier than ever.

Two years ago, World Wide Technology began conducting criminal background checks on new employees who oversee buying and selling equipment — the first time it required this check in the company’s 23-year history.

Now, the systems integration firm, which employs more than 2,000 people, is mulling making criminal background checks a requirement for all new employees.

“That will be the next step, because of our growth and increased visibility and liability” said Paul Koetting, World Wide Technology’s director of human resources. “We’re always trying to protect the company from all angles. When we were a smaller company, it wasn’t as important. When you get bigger, you can become a target.”

Maryland Heights-based World Wide Technology, which has about 100 current openings, is one of a growing number of employers making employment background screening a part of the hiring process.

At the AAIM Employers Association, a Brentwood-based provider of employer-related business services to 1,600 Missouri and Illinois employers, the number of companies utilizing the background checks and drug tests that AAIM offers its members more than doubled last year while its membership rose only marginally.

In 2012, 810 companies sought AAIMCheck background checks or drug tests from the organization, up from 392 in 2011.

The group’s background checks include employment and education verification, driving records and criminal histories.

However, county civil record searches that detail a prospective employee’s past or current civil lawsuits was the category that AAIM saw the most growth from 2011 to 2012, company executives said. A standard search dates back seven years.

Overall, AAIMCheck ran 19,215 background checks in 2012, up from 8,313 in 2010. The number of drug tests it conducted for its members grew from 502 in 2010 to 4,236 last year.

Philip Brandt, AAIM’s president and CEO, said the sharp rise in the number of checks isn’t due to increased hiring activity by its members.

Instead, employers are increasingly becoming aware of the high costs when they don’t pre-screen employers, he said.

“Hiring people costs money,” Brandt said. “To get it right the first time is what employers are more focused on now.”

An added danger, Brandt said, is the greater exposure companies are faced with when a high-ranking employee is caught flubbing information on his or her resume.

Examples of executives whose resumes contained errors that proved embarrassing for their employer include Yahoo! Inc.’s former CEO Scott Thompson, who was ousted from the company a year ago after news broke that he claimed a degree in computer science he hadn’t earned.

“There’s more and more awareness when hires go wrong,” Brandt said. “That can be devastating for their business.”

The increase in activity is leading to growth for AAIM, which currently has 25 employees and plans to hire five employees this year.

The St. Louis Zoo, which employs up to 800 people in the busy summer months, made drug testing mandatory three years ago for all seasonal, part-time and full-time employees.

“We want to know as much as we can about new employees,” said Dustin Deschamp, the zoo’s HR director. “It is becoming almost industry standard to perform background checks and drug testing because of the liability issues you’re facing.”

But with the increase, employers need to make sure they don’t run afoul of federal law.

“It’s a trend that we’ve been noting for several years, particularly after 2011,” Michelle Rodriguez, staff attorney for the National Employment Law Project, said about increasing number of employers conducting background checks and drug tests. NELP is an employee advocacy nonprofit organization based in New York.

Rodriguez said the number of companies that offer these services is increasing, and technology is making it faster and easier for the checks and tests to be performed.

Her nonprofit group is fielding more complaints from people who say background checks are making it impossible to find work, she said.

“Unfortunately, there are too many companies that have blanket bans” based on criminal history or other factors, Rodriguez said.

The U.S. Equal Employment Opportunity Commission provided new guidance last April that said the use of some background checks in hiring can violate prohibitions against employer discrimination in Title VII of the Civil Rights Act.

For example, a company could be in violation of Title VII if it uses criminal history information for applicants in different ways for different groups, based on applicants’ race or national origin.

The zoo follows all labor laws when it uses information gleaned from background checks and drug tests, Deschamp said.

“We don’t automatically disqualify anybody based on what we see in background checks,” he said. “We want to make sure we are doing everything we can to make sure the zoo is as safe as possible for visitors and co-workers.”

David Minton, president and CEO of Clayton-based Heartland Bank, said the bank, which employs 300 people, has used background checks and drug tests on all new hires for at least six years.

“We’re obviously handling one of customers’ most important possessions, their money,” he said. “We want to make sure that we do that with employees of the highest caliber.”

But even with the information the background checks and drug tests can offer, Minton said employers should also rely on other factors to make their hiring decisions.

“There’s no substitute for checking references,” he said.

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Alert: Thieves create fake hotel Wi-Fi hot spots to steal your information

You check into your hotel room, close the door, and lock it.

But, the threat isn’t from someone prowling the halls of the hotel. It could be from the guy staying in the next room.

HealthGuard security expert Apolonio Garcia showed us how he could create his own wireless internet access point at any hotel – and label it “Hotel Wi-Fi.”

“As soon as someone accesses that and starts using the internet,” he said, “we’re able to see and capture everything they’re doing.”

Guests are connected to the internet – but through Garcia’s laptop.

He has “a piece of software that’s running on it that’s looking for username and password, that’s looking for log-ins, and when it sees it, it actually logs it for use later,” he said.

The thief basically creates a mirror image of the hotel’s own website, but with one critical difference: One is real. The other is there to steal your credit card information.

“You can easily create a fake page, have them enter their credentials, pass the user onto the legitimate website so the user doesn’t know that they just gave you – the bad guy – their credit card information,” he said.

Garcia said the thief could be anywhere in or near the hotel. He set up in the hotel bar so nearby guests get the most bars on their device.

With his “high gain” USB antenna, his is the strongest Wi-Fi signal in the lobby and in many surrounding rooms.

“Once you have the username and password,” Garcia said, “you really do have that user’s access to pretty much anything.”

Security experts say 38 percent of all credit card fraud involves the hotel industry, so be on alert the next time you check in on your next vacation.

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Be Fire Smart: Tips for Travelers

As spring break and summer are coming up, staying at a hotel or motel probably is on the agenda. Here are some very important fire-safety hints specifically for travelers, thanks to the Insurance Information Institute (III).

If you are planning to stay in a hotel or motel, even for one night, take a few minutes to familiarize yourself with the premises and to locate escape routes in case an emergency should occur.

Knowing what to do in an emergency is crucial, especially if that emergency is a fire. Acting calmly and quickly may save your life. The following fire safety tips are a must for every traveler:

·         As soon as you check into a hotel or motel, go into the hallway and locate the nearest exits.

·         Count the number of doors from your room to the exit and memorize that number. Note which side of the hall the exit is on, or if you must turn left or right.

·         If a fire should occur, do not panic. Staying calm will increase your chances of survival.

·         Remember, smoke rises. It also kills. If you should awaken to smoke in your room, roll out of bed, grab your key and crawl to the door. Even if you can tolerate the smoke while standing, it is safer to crawl.

·         You should always place your key on your night stand before retiring so you won't have to waste time looking for it in an emergency.

·         When you reach the door, do not open it until you have checked to be sure there isn't fire on the other side. Brace your shoulder or foot against the door and open with extreme caution. Should you be confronted with a high concentration of super-heated air or smoke, close the door immediately.

·         If the hall is passable, use one of your pre-designated escape routes.

·         Do not waste time gathering personal belongings but shut your door and take your key.

·         Do not use an elevator. It may stall due to heat or loss of power.

·         If you must use an inside stairwell, check door for smoke on the other side before entering stairwell.

·         If the stairwell is safe to enter, WALK downward, do not run. Hold onto wall or handrail to prevent falling.

·         If all of your escape routes are blocked, it may be safer to return to your room.

·         If you must return to your room or remain in your room, because escape routes are blocked, open a window slightly to let smoke escape. If the window will not open, do not break it—a large hole can pull smoke into the room. If the smoke is outside, keep window closed. Do not jump. You may not survive the fall.

·         If you must remain in the room, close all vents and air ducts. Wet towels and sheets and stuff them around doors, and into vents and air ducts.

The extra few minutes that it takes to memorize these fire safety tips may save your life.

Employee crashes go-cart at work event: Can he get workers’ comp?

As spring approaches, thoughts turn to fun outdoor activities to reward hard-working employees or serve as team-building exercises. But if employees get hurt at these activities, can they receive workers’ comp benefits?

Danny Douglas worked as a computer support analyst for Ad Astra, a software company in Overland Park, KS.

On Nov. 3, 2006, an email invited employees to a company-sponsored event that afternoon at an indoor racing facility. Employees could either attend the event or remain at work.

The company covered all of the event expenses, including food. Employees were paid while attending.

At the event, Ad Astra’s owner gave a brief pep talk about one of the company’s upcoming products. The owner  then divided the employees into teams and asked them to compete for prizes. The teams with the fastest go-cart lap times would win.

While racing his go-cart, Douglas had to sharply turn to avoid a collision with another go-cart that was stopped on the track. While traveling at about 25 miles per hour, Douglas crashed his go-cart into a tire wall and was thrown from the vehicle, landing on his right side.

Later that night, Douglas sought medical treatment. He suffered a rib fracture and a lung injury that required surgery.

Douglas applied for workers’ comp benefits. Ad Astra denied his claim because Douglas was injured at a recreational event that he wasn’t required to attend and his activities weren’t work-related.

The employee saw things differently. Douglas said he felt pressured to attend the event. He said he normally wouldn’t race a go-cart, but he agreed to because he wanted to be “part of the team.”

An administrative law judge ruled Douglas could receive workers’ comp benefits for his injuries. Ad Astra appealed to the Kansas Workers’ Compensation Board.

Was event purely recreational/social?

The company pointed to the state workers’ comp law which says:

“The words ‘arising out of and in the course of employment’ … shall not be construed to include injuries to employees while engaged in recreational or social events under circumstances where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or specifically instructed to be performed by the employer.”

The Board concluded that Kansas law didn’t define what is a recreational or social event. So it used three factors in Larson’s Workers’ Compensation Law, a law book cited by courts in workers’ comp cases in all U.S. states.

Larson’s lists three factors for determining whether recreational and social activities fall within the course of a worker’s employment:

1.       whether the employer expressly or impliedly requires participation

2.       whether the employer derives a benefit from the employee’s participation beyond the employee’s health and morale, and

3.       whether the activities occur on the employer’s premises during lunch or a recreation period as a regular incident of employment.

Using this three-part test, the Board found the go-cart racing was not a purely recreational or social event. Douglas said he believed participation in the event was required. The only alternative was to remain at work, effectively motivating employees to go to the race park. Also, Ad Astra’s owners gave a speech regarding a new product and assigned employees to racing teams for the event, implying this was a team-building activity.

And while the injury didn’t occur on Ad Astra’s property, it happened on premises the company reserved exclusively for its employees to use on the day of the go-cart races. The fact employees were paid for their time at the track was also a consideration.

For those reasons, the Board found that Douglas’ injuries did not occur during a recreational or social event. Therefore he could receive workers’ comp benefits.

Did Board use correct test?

After the Board decision, Ad Astra took its case to the Kansas Court of Appeals. The company argued the Board shouldn’t have used the Larson’s test. Instead, it should have used the plain language included in the state’s workers’ comp law.

But the appeals court didn’t see it that way. The majority found it was appropriate to use the Larson’s factors.

As you might guess, Ad Astra appealed to the Kansas Supreme Court.

The state’s highest court agreed with Ad Astra that the lower courts unnecessarily used the Larson’s test in this case. The court said the definition of a recreational event in the Kansas workers’ comp law was sufficient. However, this isn’t likely to change the result.

The court noted that, in Kansas law, injuries during recreational activities are only excluded from comp coverage “where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee’s normal job duties or as specifically instructed to be performed by the employer.”

The Supreme Court said there was sufficient evidence to support the idea that Douglas was “under some duty” to attend the go-cart event. The court said Douglas was mandated by his employer to be in one of two places: either at work or at the race facility.

Another problem for the company: The owners divided workers into teams to race the go-carts, effectively telling Douglas to participate in the race.

The Supreme Court sent the case back to the Board for further consideration. But the high court’s guidance is clear: There was enough evidence this was not purely a recreational activity. It appears Douglas will be able to collect workers’ comp benefits.

Does this throw a wet blanket on recreational and social activities sponsored by companies? Not necessarily. Employee participation must truly be voluntary. And executives should steer very clear from giving work-related speeches at these events. Sticking to the mantra of not mixing work and play is a good idea for any employer looking to avoid workers’ comp claims for employee injuries at company-sponsored fun events.

What do you think of the court’s decision? Let us know in the comments below.

(Douglas v. Ad Astra Information Systems, Supreme Court of KS, No. 101,445, 2/8/13)

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