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Fabi employees stand on top of the panel while demolition occurs. A hole is drilled into the panel to determine where the reinforced steel is situated. The concrete is then hammered away until the rebar shows, which is then sawed through. On the sixth panel, ten stories above ground, the knockout panel collapsed while Caucci was hammering at the drill hole, trying to make the hole bigger. Caucci plummeted 110 feet to his eventual death while the employee he was working with caught a ledge on a lower floor.

The court maintained that Fabi was required to provide employees with training specific to demolition activities under 29 C.F.R. ''1926.20(b)(1) and 1926.21(b)(2). Despite the employer's attempt to argue otherwise, the ruling to require this training does not violate precedent in that the cases the employer relied upon were non-reviewed ALJ decisions, which lack precedential significance. According to the court, situations in which the Secretary and commission agree mandate that the court defer to that interpretation unless it violates the plain meaning of the statute. The commission's use of “reasonably prudent employer” corresponds with the training regulations, the court maintained. The court also deferred to the interpretation by the commission that the requirement for employers to determine the strength and integrity of work surfaces is maintained throughout the demolition process for as long as workers remain on the surface, not just the conception of the process.

The employer was assessed fines of $31,500 after an investigation by OSHA as a penalty for willful, serious, and other non-serious violations after the death of one if its employees.

Tribal Law Enforcement Not Covered By FLSA While Off Reservation

The Fair Labor Standards Act (FLSA) does not cover Navajo Nation law enforcement officers despite working off-reservation while interacting with non-tribal law enforcement agencies according to the Ninth Circuit. Snyder v. Navajo Nation, 2004 WL 1277031 (9th Cir., June 10).

Officers of law enforcement brought a putative class action suit against the Navajo Division of Public Service and the United States for failing to pay overtime to Navajo Nation law enforcement officials. The officers alleged that they did not receive the same compensation as the law enforcement officers working for the Bureau of Indian Affairs despite performing similar work. In addition, the law enforcement officers alleged that despite having to work overtime regularly, any overtime payments were only partial payments and were often delayed and sporadic.

The claims were rejected by the U.S. District Court for the District of Arizona, which held that law enforcement is a function that falls under the self-governance of tribes and therefore is not covered by the FLSA. Within limits, the court explained, where the law interferes with self-governance, the actions of Indian tribes are exempt. The travel off of the reservation was declared by the court to be incidental to the work being formed, but directly related to the matters conducted by the reservation. This, the court said, means the law enforcement official is still serving the interests of the tribe and its right to self-govern its reservation. Any time self governance is “clearly implicated,” the court declared, the actions are included in the realm of “intramural matters,” and are exempted.

ADA Does Not Prevent Harassing Workers with Learning Problems

A federal judge has ruled that while drawing pictures of an employee and calling him names was not “nice,” the acts did not give rise to a cause of action under the Americans with Disabilities Act (ADA). Roberts v. Dimension Aviation, 2004 WL 1197298 (D. Ariz. May 24).

Plaintiff Richard Roberts, who suffered from poor vision and a learning disability, brought the suit after he was discharged. He alleged that he was fired due to his learning disability and strabismus (lazy eye). This, he alleged, was evidenced by his supervisor posting a picture of him playing dominoes with stars surrounding his head, looking confused, on the company bulletin board and leaving it there for 2 months. The court maintained that though this was “not nice,” it did not establish that it was done because he had a disability and only established that he was bad at dominoes, which is not actionable under the ADA.

Roberts' 20-year-old high school files that showed he took special education classes did not establish that he currently had a learning disability, the court declared. In addition, Roberts' eyesight, though he suffered from strabismus, was measured at 20/25, which the court declared was insufficiently poor to establish that it was a disability. The court further maintained that being called “stupid,” “retarded,” and “fag,” in addition to being called “walleye” and “one-eye” because of his lazy eye, were also not sufficient to establish a claim under the ADA because the condition he was being harassed about did not constitute a disability.

Failure to Implement Safety Rules Leaves Employer Responsible for Worker's Death

The District of Columbia Circuit has affirmed a decision that the dangerous nature of a demolition process placed a construction contractor on notice that safety measures were necessary to protect its workers. Fabi Constr. Co. v. Secretary of Labor, 2004 WL 1217955 (D.C. Cir. June 4).

The accident occurred in Atlantic City in conjunction with the TropWorld West Expansion Project — the construction of a 21-story hotel on top of a pre-existing ten-story parking garage. Frank Caucci, an employee of Fabi Construction, was involved in the demolition of knockout panels in the garage. These panels, typically used to cover holes where future elevators will be installed, weigh around 10,000 pounds each.

Fabi employees stand on top of the panel while demolition occurs. A hole is drilled into the panel to determine where the reinforced steel is situated. The concrete is then hammered away until the rebar shows, which is then sawed through. On the sixth panel, ten stories above ground, the knockout panel collapsed while Caucci was hammering at the drill hole, trying to make the hole bigger. Caucci plummeted 110 feet to his eventual death while the employee he was working with caught a ledge on a lower floor.

The court maintained that Fabi was required to provide employees with training specific to demolition activities under 29 C.F.R. ''1926.20(b)(1) and 1926.21(b)(2). Despite the employer's attempt to argue otherwise, the ruling to require this training does not violate precedent in that the cases the employer relied upon were non-reviewed ALJ decisions, which lack precedential significance. According to the court, situations in which the Secretary and commission agree mandate that the court defer to that interpretation unless it violates the plain meaning of the statute. The commission's use of “reasonably prudent employer” corresponds with the training regulations, the court maintained. The court also deferred to the interpretation by the commission that the requirement for employers to determine the strength and integrity of work surfaces is maintained throughout the demolition process for as long as workers remain on the surface, not just the conception of the process.

The employer was assessed fines of $31,500 after an investigation by OSHA as a penalty for willful, serious, and other non-serious violations after the death of one if its employees.

Tribal Law Enforcement Not Covered By FLSA While Off Reservation

The Fair Labor Standards Act (FLSA) does not cover Navajo Nation law enforcement officers despite working off-reservation while interacting with non-tribal law enforcement agencies according to the Ninth Circuit. Snyder v. Navajo Nation, 2004 WL 1277031 (9th Cir., June 10).

Officers of law enforcement brought a putative class action suit against the Navajo Division of Public Service and the United States for failing to pay overtime to Navajo Nation law enforcement officials. The officers alleged that they did not receive the same compensation as the law enforcement officers working for the Bureau of Indian Affairs despite performing similar work. In addition, the law enforcement officers alleged that despite having to work overtime regularly, any overtime payments were only partial payments and were often delayed and sporadic.

The claims were rejected by the U.S. District Court for the District of Arizona, which held that law enforcement is a function that falls under the self-governance of tribes and therefore is not covered by the FLSA. Within limits, the court explained, where the law interferes with self-governance, the actions of Indian tribes are exempt. The travel off of the reservation was declared by the court to be incidental to the work being formed, but directly related to the matters conducted by the reservation. This, the court said, means the law enforcement official is still serving the interests of the tribe and its right to self-govern its reservation. Any time self governance is “clearly implicated,” the court declared, the actions are included in the realm of “intramural matters,” and are exempted.

ADA Does Not Prevent Harassing Workers with Learning Problems

A federal judge has ruled that while drawing pictures of an employee and calling him names was not “nice,” the acts did not give rise to a cause of action under the Americans with Disabilities Act (ADA). Roberts v. Dimension Aviation, 2004 WL 1197298 (D. Ariz. May 24).

Plaintiff Richard Roberts, who suffered from poor vision and a learning disability, brought the suit after he was discharged. He alleged that he was fired due to his learning disability and strabismus (lazy eye). This, he alleged, was evidenced by his supervisor posting a picture of him playing dominoes with stars surrounding his head, looking confused, on the company bulletin board and leaving it there for 2 months. The court maintained that though this was “not nice,” it did not establish that it was done because he had a disability and only established that he was bad at dominoes, which is not actionable under the ADA.

Roberts' 20-year-old high school files that showed he took special education classes did not establish that he currently had a learning disability, the court declared. In addition, Roberts' eyesight, though he suffered from strabismus, was measured at 20/25, which the court declared was insufficiently poor to establish that it was a disability. The court further maintained that being called “stupid,” “retarded,” and “fag,” in addition to being called “walleye” and “one-eye” because of his lazy eye, were also not sufficient to establish a claim under the ADA because the condition he was being harassed about did not constitute a disability.