December, 2006

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Article Index

Compliance News Notes: Respiratory Protection
Article by: Vija Kelly
OSHA revised the Respiratory Protection Standard in the late 1990's and has been tinkering with it ever since. A new final rule has been issued which establishes Assigned Protection Factors (APFs) for respirators.
New Court Decision Regarding Vacation Policy May Cost You
Article by: Gregory Peters
The Minnesota Court of Appeals recently issued an opinion that impacts the payment or non-payment of unused vacation time to terminated employees. In Lee v. Fresenius Medical Care, Inc., the court concluded that, if an employee has "earned" or "accrued" vacation time, those earnings are "vested" and must be paid to an employee upon termination. This requirement holds even if the employer's policy states that such an employee "forfeits" compensation for unused vacation time at termination under specified conditions.
Book Review: The Medici Effect
Article by: John Hehre
Although the title is suggestive of a spy novel or a history text, The Medici Effect* by Frans Johansson is an insightful discussion of creativity that may be extrapolated into the workplace.
Participate in the 2007 Manufacturing Compensation Benefits Survey
Article by: Manufacturers Alliance
Join your peer companies and participate in our annual compensation and benefits survey specific to manufacturers - now in its ninth year! First-time, member participants will get the full survey for FREE. Participation is open through February 16, 2007.
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Compliance News Notes: Respiratory Protection
OSHA revised the Respiratory Protection Standard in the late 1990's and has been tinkering with it ever since. A new final rule has been issued which establishes Assigned Protection Factors (APFs) for respirators.

APFs provide employers with information about a respirator's ability to filter out hazardous particles, gases, and vapors. Proper respirator selection is based on the respirator's APF number, the concentration of the hazard, and fit-testing. These are also the elements that go into an OSHA-compliant respiratory protection program.

As defined in the new rule, an APF is "the workplace level of respiratory protection that a respirator or a class of respirators is expected to provide to employees when the employer implements a continuing, effective respiratory protection program."

In the final rule, OSHA focuses on the Maximum Use Concentration as a method to select the appropriate respirator. MUC is defined as "the maximum atmospheric concentration of a hazardous substance from which an employee can be expected to be protected when wearing a respirator."

The MUC can be determined by multiplying the APF specified by the respirator by the OSHA Permissible Exposure Limit (PEL), or MUC = APF x PEL. In other words, if the airborne concentration of a substance is less than or equal to 10 times the PEL, an employer must select a respirator with at least an APF of 10.

This means the employer must know the PEL of the substance to which employees will be exposed and the amount of the contaminant in the air against which employees must be protected. When no OSHA exposure limit is available for a hazardous substance, an employer must determine an MUC on the basis of relevant available information and informed professional judgment.

Among our clients, in most cases respirators are used in conjunction with paint booths or painting operations. The respirator must protect against organic vapor inhalation. The organic vapor may have several constituents including toluene, xylene from paint thinner, as well as ingredients from the paint itself. Usually using the PEL for either the toluene or xylene will provide an MUC that is workable for exposure to all the organic vapor. Organic vapor concentration monitors are readily available from safety supply houses so the employer should be able to feel pretty confident about the results using the above calculations.
<img src="http://www.mfrall.com/newsletter/authorpics/vijakelly.jpg"align="left">Hazard Management is a consulting and training firm specializing in occupational safety and hazardous waste management. Call Vija Kelly at 651-697-0422 for more information.

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New Court Decision Regarding Vacation Policy May Cost You
The Minnesota Court of Appeals recently issued an opinion that impacts the payment or non-payment of unused vacation time to terminated employees. In Lee v. Fresenius Medical Care, Inc., the court concluded that, if an employee has "earned" or "accrued" vacation time, those earnings are "vested" and must be paid to an employee upon termination. This requirement holds even if the employer's policy states that such an employee "forfeits" compensation for unused vacation time at termination under specified conditions.

In reaching its decision, the court relied upon Minnesota's law governing the payment of wages to a discharged employee. Minnesota Statute § 181.13 provides, "[w]hen any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee." An employer who does not pay wages or commissions "earned" within 24 hours of an employee's demand is in default and subject to additional statutory penalties. The statute does not specifically define "wages," but the Court of Appeals had earlier determined that "wages" does include accrued vacation time that the employee had accumulated but not used.

In Lee, the employer had a policy which stated, "In addition, if your employment is terminated for misconduct, you will not be eligible for . . . payment of earned but unused [paid time off] unless required by state law." Lee was fired for misconduct and the employer paid her for accumulated wages, but did not pay her the earned, but unused, vacation time. The court determined that, despite the employer's policy, § 181.13 did not include an exception for employees discharged for misconduct, so Lee was entitled to payment for her "earned" vacation time. While the court noted that an employer's liability for an employee's vacation pay is a matter of contract, it concluded that the policy in Lee was in violation of § 181.13. This case is currently under review by the Minnesota Supreme Court.

Despite Lee, it is still possible to draft a policy under which employers can avoid payout of vacation time at separation to employees who engage in misconduct, fail to give adequate notice of resignation, or violate their employment agreement. However, this will require careful drafting to avoid "vesting" and/or additional accrual of vacation pay as in Lee. It is useful for employers to stay abreast of court decisions in order to make informed decisions and create new policies if they decide there is a need.
Gregory L. Peters, is an attorney with Seaton, Peters & Revnew, P.A. whose practice is limited to representing employers in labor and employment matters. Mr. Peters has worked with companies in all areas of employment counseling, employment litigation, labor arbitration, union organizing and labor negotiations. Mr. Peters can be reached at (952) 921-4607.

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Book Review: The Medici Effect
Although the title is suggestive of a spy novel or a history text, The Medici Effect* by Frans Johansson is an insightful discussion of creativity that may be extrapolated into the workplace.

The Medicis were a powerful family in Florence between the thirteenth and seventeenth centuries. Their significant financial support fostered unprecedented advances in arts, architecture, and science during this period in history. The author suggests that, aside from the obvious financial support, creativity flourished because so many people from different disciplines were brought together in one place. It is this so-called Medici Effect - the intersection between seemingly different fields of study -- that provides true creative breakthroughs. In relation to the world of manufacturing, it may be useful to bring different teams together, bring people of diverse thought processes together, when working on new product development or visioning for the future. Johansson supports this idea with examples from modern times and provides practical advice on how to foster creativity in this manner.

The book is divided into three sections. The first section introduces and supports the idea of the intersection between different disciplines as the driving force behind truly significant breakthrough ideas. The section is slightly academic but illustrates the point well. The second section provides a series of suggestions for creating these intersections. This section in particular may be especially useful for manufacturers seeking to expand their repertoire. The third section provides advice for fostering the creativity once the intersections are established.

The author makes several important points. First, creativity is dependent on chance. Skill, knowledge, and resources can move an idea forward. However, they aren't likely to provide the breakthrough idea in the first place. The odds of coming up with totally new ideas can be greatly improved by following the ideas set forth in the book. Second, failure is essential. In the business world, this may seem counterintuitive. However, the concept behind this, as the author suggests, is that significantly increasing the number of ideas will certainly increase the number of "bad" ideas, but it also results in far more good ideas. The trick is making sure you have the resources to discover which is which and exploit the good ones, for there continues to be a bottom line.

Finally, a better understanding of an important psychological component of risk may cause one to approach the development of ideas in a different way.
Creativity need not be elusive. This book has some intriguing and different ideas about creativity and how to foster creativity given the right environment. The liberal use of examples and practical suggestions make the book useful for people charged with the generation and development of new ideas, especially those in leadership roles in manufacturing.

* Johansson, Frans: The Medici Effect. Boston, MA: Harvard Business School Press, 2006
John Hehre is a senior operations executive and provides interim management and project based consulting to mid-sized private companies in need of transformative change. He can be reached at jhehre@cprocess.com.

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Participate in the 2007 Manufacturing Compensation Benefits Survey
Join your peer companies and participate in our annual compensation and benefits survey specific to manufacturers - now in its ninth year! First-time, member participants will get the full survey for FREE. Participation is open through February 16, 2007.

The easy-to-use format will save you time. Stay current in this changing labor market, and take advantage of these features:
  • Simple and convenient online participation with full tutorial on how to navigate the web forms. For returning participants, previous year's data is pre-loaded for convenient comparison.

  • Management Trend Report that includes what companies are doing to preserve their core talent while controlling their labor costs.

  • Participants who purchase the survey get a customized, participant profile report ranking their wage data against other survey participants for each position reported. This is a real time saver!

  • Real-time validation/confirmation of data submission accuracy. "Save and Close" feature allows you to complete the survey at your own pace.

This extensive survey will cover:

  • Hourly production and support position wages

  • Executive, technical, administrative, and sales salaries

  • Over 175 job categories, including 20 positions added this year

  • Industry benefit practices

If you are in local manufacturing, this wage survey is for you - it grows bigger and better every year! To determine if your company is already involved, please contact Vickie Parks at the Manufacturers Alliance at 763-533-8239 or vickiep@mfrall.com.
For general information or to participate visit our Web site at www.mfrall.com and click on 2007 Wage Survey. All participants and members will receive discounts.
The mission of the Manufacturers Alliance is to provide peer-to-peer training, education, and resources which inspire manufacturing companies to continuously grow, improve, and stay competitive.

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