Hearing Conservation

Hearing loss from noise can occur with no symptoms and no warnings of any kind. Its progress is so slow and sneaky that you hardly notice it because you simply adjust as sound reception becomes fainter.

People who work around noise and don’t wear hearing protection probably don’t realize what is happening to their hearing. Most people are unaware that everyday noises such as lawn mowers and machinery have an effect on hearing. Since the damage accumulates over many years, it’s often too late to prevent or reverse what has already been done.

Exposure to a large amount of sound will cause a person’s hearing to worsen temporarily. For most people, resting and avoiding loud noises returns their hearing to its normal level. Hearing loss occurs when a person is continually surrounded by loud noises and takes no precautions so that damage becomes permanent.

Every person will experience some amount of natural hearing loss as they age. Simple steps such as lowering the volume on your TV or stereo can keep hearing loss to a minimum.

Prolonged exposure to loud noises can cause permanent hearing loss, but noise can be reduced before it ever reaches the eardrum by earplugs or ear muffs (most cost-effective), or by using noise dampening materials around machinery. If ear protection is necessary for a job or certain work function, the employer (municipality) is required to have it available and require its use by employees.

5 Excuses for not wearing proper hearing protection:

• “I can’t hear other workers.” – At high noise levels, hearing becomes overloaded. Reducing overall sound levels allows the ear to operate more effectively in much the same way sunglasses provide improved vision in bright light, high-glare conditions.

• “My machine sounds different.” – The sound of a machine will sound different to workers wearing hearing protection, but they will become accustomed to the new sound and will be able to monitor the sound of machines as well at the end of the day as at the start of the shift.

• “I’m used to noise.” – Exposure to noise does not toughen ears. Ears do not become used to noise - workers become deaf.

• “Protectors are uncomfortable.” – Like new shoes or glasses, new hearing protectors need a period of adjustment. If discomfort persists, the device should be exchanged for a different size or type that will fit more comfortably.

• “I’ve already lost some of my hearing; why should I wear hearing protection now?” – Just because you lost some hearing doesn’t mean you’re protected from losing more or all of it. Initially, hearing is damaged at higher frequencies, but as unprotected exposures continue, the damage will spread to the lower frequencies, eventually affecting your understanding of speech. Although hearing protection devices cannot restore a noise-induced hearing loss, they can prevent additional losses from occurring.

It is important to remember, once hearing protection is put on it needs to be monitored. Hearing protection can loosen or be jostled out of position and needs to be readjusted from time to time to be most effective.

It is best to identify tools, machines, and areas where hearing protection must be worn, and have the appropriate types of hearing protection for the type of work.  Train your workers and have appropriate policies and procedures in writing and in place. Supervisors must monitor workers who are in areas where hearing protection is required and hold them to the policies.

Don’t play it by ear. When the job calls for hearing protection, use it!

How to Avoid Injuries and Illness When Temperatures Plummet

Limiting a worker’s exposure to cold can go a long way toward preventing cold stress injuries and illnesses such as frostbite, hypothermia, trench foot, and chilblains.  Three major factors to keep in mind when working outdoors are air temperature, wind, and moisture. Exposed skin is in danger of freezing within one minute when the temperature is 10 degrees and there is a wind of around 20 mph. Wet conditions greatly increase the potential for frostbite or hypothermia. Moisture on the skin and any wind can cause the body to lose heat.

Dressing properly for the cold is critical for workers.  Experts recommend using breathable layers, making sure clothing is not so tight it cuts off circulation or impedes movement.  Be aware that PPE may restrict some movements. Layering also allows workers to remove clothing if they become too warm from exertion or changing weather conditions. Layering clothing provides a worker with better insulation against the cold because the body warms trapped air between the layers. If the fabric is breathable it will keep perspiration from building up on the skin and pulling away needed body heat. Wearing a hat or hood is also recommended, to decrease the loss of body heat escaping from the head. Knitted hats that cover the ears and at least part of the face will likely keep a worker warmer than a ball cap.

Regarding footwear, experts suggest insulated, waterproof boots with good built-in traction. In extremely cold regions, it is also recommended boots be felt lined, rubber bottomed and leather-topped. Gloves should also be insulated and water resistant.

OSHA doesn’t have a defined standard on working in the cold but states that employers must protect workers from hazards in accordance with the Occupational Safety and Health Act. The following are recommendations for employers pertaining to protecting employees:

• Schedule work to be completed during the warmest part of the day

• Tell workers to use the “buddy system” (nobody works outdoors alone) so they can monitor each other

• Provide extra workers for longer, more demanding jobs

• Set up a warm dry shelter for workers to take breaks in out of the cold

• Provide warm liquids to drink, avoiding caffeine and alcohol

• Use engineering controls such radiant heaters, if possible

• Ensure you have a method to communicate with all workers, especially in remote locations

Also advise workers to avoid touching metal surfaces with bare skin, and to bring extra clothing in case they get wet. Have emergency cold weather kits available: blankets, a thermos of a hot beverage, first aid kit with chemical hot packs and a thermometer.

OSHA warns workers to avoid working to fatigue or exhaustion. Stay hydrated and drink as much water as in the summertime. You can get dehydrated even though you don’t feel like you are sweating. It is a common mistake in cold temperatures. People don’t realize heat is escaping their body and taking moisture from the body with it.

Employers must train their workers on the prevention, risks, and symptoms of cold stress. Quick daily reminders are also helpful, especially when the weather is particularly bad. Provide written information concerning the signs and symptoms of frostbite, hypothermia, trench-foot, chilblains, and angina. This information can be easily found on the internet. Employers should remind workers of the symptoms they need to be looking out for, and that it is a time when they must keep a close eye on their co-workers, and make sure everybody is doing “OK”.

Distracted Walking: A Major Working Safety Concern

Distracted driving is a well-established problem, so much so that many states have bans in place when it comes to using technology while driving, but the problem of “distracted walking” is a relatively new hazard. Sure, people have been walking out in front of moving objects or stepping off cliffs since the beginning of time, but a new piece of daily-use equipment seems to be increasing the problem – smartphones and tablets. While we might laugh at a woman who falls into a fountain while texting or someone who walks into a glass wall while watching a you-tube video on his phone, the problem with distracted walking is a very serious one.

According to the National Highway Traffic Safety Administration, nearly 5,000 pedestrians were killed and another 76,000 injured in traffic accidents in 2012. While it is not clear how many of these were directly attributed to distracted walking, pedestrian fatalities are getting worse each year, perhaps due to the use of smart phones and other devices.

Common risks associated with distracted walking include: trips, sprains, strains, fractures, cuts, bruises, broken bones, concussions, brain injuries, spinal cord injuries, death, and injuries to someone else. People who text while walking are 60% more likely to be injured or cause injury than non-texters. Scientist call the phenomenon, “inattentive blindness”; they state the human brain can only adequately focus on one task at a time. So, when you are texting or talking on the phone and trying to walk, you cannot give full attention to both tasks. Today we hear people brag about being able to “multi-task”, but our brains cannot efficiently provide adequate attention to more than one task at a time.

It’s not just texting while walking that is the problem. Talking, checking email, using social media, even playing games on your phone/tablet all contribute to the problem of distracted pedestrians. After years of decline, pedestrian deaths have started to increase since 2009, and while there is no reliable data directly related to cell phone use, experts speculate the increase is due in part to distracted users of cell phones while walking.

The solution to distracted walking is a simple one: Don’t use your cell phone or engage in other distracting activities while walking. Focus solely on the task at hand – getting from point A to point B in one piece, and worry about checking your phone when you get there.

Other safety concerns for pedestrians:

• Traffic signals – Obey traffic signals (whether you are driving or a pedestrian). If the traffic signal is not in your favor do not begin crossing, and look before you begin to cross.

• Cross streets at appropriate places -  Jaywalking or crossing the road where there is no crosswalk is a leading cause of pedestrian injury. The NHTSA has found that crossing streets improperly accounts for approximately 30% of pedestrian fatalities.

• Visibility – It can be difficult for drivers to see those walking at night or in low-light or inclement weather. Wear light colored clothing, walk in well lit areas or carry a flashlight, and wear reflective clothing for added visibility.

Take the time to inform employees of the hazards of distracted walking, share with them the statistics, and create policies to reduce the potential for injuries due to distracted walking incidents. It is everybody’s responsibility to help create a safe work environment.

What is Distracted Driving at Work?

Distracted driving occurs any time you take your eyes off the road, hands off the wheel, and mind off your primary task, which is driving safely. Any non-driving activity you engage in is a potential distraction and increases your risk of being involved in a motor vehicle crash.

Workers in many industries and occupations spend part of their workday on the road. Drivers at work are more likely to be in a hurry to reach their destination, think about a work procedure, be tired, or use their cell phone while driving.

The following are some options both employers and employees can implement to reduce distracted driving accidents:

Employers: Use the following recommendations to prevent distracted driving.

• Ban texting and hand-held phone use while driving a city vehicle, and apply the same rules to use of a city-issued phone while driving a personal vehicle.

• Consider banning the use of hands-free phones.

• Require workers to pull over in a safe location if they must text, make a call, or look up directions.

• Prepare workers before implementing these policies by communicating:

• How distracted driving puts them at risk of a crash

• That driving requires their full attention while they are on the road

• What they need to do to comply with your company’s policies

• What action you will take if they do not follow these policies

• Consider having workers acknowledge that they have read and understand these policies.

• Provide workers with information to help them talk to their family about distracted driving.

Employees: Take the following actions to stay focused behind the wheel.

• Do not text or use a hand-held phone while driving. Further, avoid using hands-free phones as much as possible – even if your employer allows them.

• Pull over in a safe location if you must text or make a call.

• Make necessary adjustments (e.g., adjust controls, program directions) to your car before your drive.

• Do not reach to pick up items from the floor, open the glove box, or try to catch falling objects in the vehicle.

• Avoid emotional conversations with passengers, or pull over in a safe location to continue the conversation. For normal conversation, passengers in the vehicle can often help lower crash risk for adult drivers.

• Focus on the driving environment — the vehicles around you, pedestrians, cyclists, and objects or events that may mean you need to act quickly to control or stop your vehicle.

Take the time to share these ideas and opportunities to reduce distracted driving losses with your employees. Help keep them safe and your municipality free from the hassles of distracted driving incidents.

Workplace Distraction Hazards

In a perfect world, employees don’t worry about breaking their arm, falling off scaffolds, or catching a lung disease. In a perfect world, they would be provided with excellent training, not just once, but regularly. In a perfect world, we wouldn’t have to worry about hazards at all. Besides being comfortable and self-cleaning, PPE could be worn in a matter of seconds and would have built-in chemical and radiation detectors. In a perfect world, when a vehicle was about to hit an employee or fire threatened to incinerate them, a bubble, from their PPE, would suddenly encompass them and keep them safe. Being resistant to fire, chemical toxins, harmful gases, and all the negative vibes of the world, the bubble would be the ultimate life and limb saver for the employee on the job. Maybe that’s taking it a bit too far, but you get the idea. All employees, whether they know it or not, wish for a job where they are provided with adequate training and PPE to keep them safe from the hazards in their workplace.

But even in a perfect world, any appropriate training or top-of-the-line PPE would be useless if a worker couldn’t manage one of the most threatening factors on the job: Distractions. Statistics show that distractions are a major contributor to many workplace injuries and fatalities.

Let’s briefly look at the 5 most common distractions on the job:

1. Mental distractions and inattention – Have you ever replayed in your mind unpleasant scenes from home while operating equipment? Or perhaps fantasized about how events will play out concerning your upcoming big weekend plans? Maybe you’ve chatted with a coworker while performing a hazardous task. Mental distractions often lead to inattention, and that could lead to you or a coworker being injured or killed. Whether you are worrying, daydreaming, or just chatting, mental distractions can be just as dangerous as working with electricity or highly flammable materials. Avoid falling into mental distractions. Stay focused on your work.

2. Poor housekeeping – Visual clutter can easily be translated into mental clutter. Frustration from not being able to find something due to a messy workplace can lead to overlooking a safety issue or make you angry enough to resort to aggression or violence. Keep work areas clean and clear of clutter, organize equipment and materials, and keep them in their place. Remember, too, that poor housekeeping says a lot about your attitude towards safety, quality, and productivity. Messy workspace also may give others the impression you are slothful.

3. Machinery – Make sure you perform work at a safe distance from machines, heavy equipment, and electrical hazards. They can impede your maneuverability, hearing, and vision which could cause a mishap or injury due to entrapment in moving parts or a slip, trip, and fall.

4. Hearing – Wear earplugs or muffs when working around loud machinery or equipment. But always ask your supervisor if it is permissible to listen to music or podcasts with earphones while working. It could be a distraction that could be fatal. No music or story is worth your life.

5. Long Unkempt Hair – Many accidents are caused by somebody getting hair caught in machinery or simply attempting to fix their hair while operating equipment. Loose and flowing hair can get in your face and obstruct vision or become a distracting annoyance causing a worker to perform an unsafe task. Tie long hair back, wear a hat, or get a haircut.

In a perfect world, distractions don’t exist, but since we’re stuck in an imperfect universe, all we can do is our job and do it safely to the best of our ability. We can try to help our coworkers to do the same. While some factors in the workplace can play a role in causing distractions, the fact remains that more workplace hazards spring from unsafe acts than from unsafe conditions.

Work-Related Winter Safety Tips

Preventing Slips on Snow and Ice

To prevent slips, trips, and falls, employers should clear walking surfaces of snow and ice, and spread deicer, as quickly as possible after a winter storm. In addition, the following precautions will help reduce the likelihood of injuries:

• Wear proper footwear when walking on snow or ice is unavoidable because it is especially treacherous. A pair of insulated and water-resistant boots with good rubber treads is a must for walking during or after a winter storm. Keeping a pair of rubber over-shoes with good treads which fit over your street shoes is a good idea during the winter months.

• Take short steps and walk at a slower pace so you can react quickly to a change in traction when walking on an icy or snow-covered walkway. Test your footing before committing your whole weight in a step. Be mindful of “black ice” (a thin sheet of ice on a surface that may not be visible to the naked eye).

• Use your door or the roof of your vehicle when getting in and out. Avoid parking on ice if possible.

Winter Driving

Although employers cannot control roadway conditions, they can promote safe driving behavior by ensuring workers: recognize the hazards of winter weather driving, for example, driving on snow/ice covered roads; are properly trained for driving in winter weather conditions, and are licensed (as applicable) for the vehicles they operate. Drive safely during the winter:

• Slow down, take your time, leave earlier than normal

• Begin slowing at intersections earlier than normal

• Avoid stopping or parking on hills or inclines

• Take corners slower than normal

• Turn into skids and avoid using the brake

• Give plenty of space between your vehicle and others and stop where you can completely see the tires of the vehicle in front of you at stop signs/stop lights

Employers should set and enforce driver safety policies. Employers should also implement an effective maintenance program for all vehicles and mechanized equipment that workers are required to operate. Crashes can be avoided. Employers should ensure properly trained workers inspect the following vehicle systems to determine if they are working properly:

• Brakes: Brakes should provide even and balanced braking. Also check that brake fluid is at the proper level.

• Cooling System: Ensure a proper mixture of 50/50 antifreeze and water in the cooling system at the proper level.

• Electrical System: Check the ignition system and make sure that the battery is fully charged and that the connections are clean. Check that the alternator belt is in good condition with proper tension.

• Engine: Inspect all engine systems.

• Exhaust System: Check exhaust for leaks and that all clamps and hangers are snug.

• Tires: Check for proper tread depth and no signs of damage or uneven wear. Check for proper tire inflation.

• Oil: Check that oil is at the proper level.

• Visibility Systems: Inspect all exterior lights, defrosters (windshield and rear window), and wipers. Install winter windshield wipers.

An emergency kit with the following items is recommended in vehicles:

• Cellphone or two-way radio

• Windshield ice scraper

• Snowbrush

• Flashlight with extra batteries

• Shovel

• Tow chain

• Traction aids (bag of sand or cat litter)

• Emergency flares

• Jumper cables

• Snacks

• Water

• Roadmaps

• Blankets, change of clothes

Winter Work Zone Traffic Safety
Workers being struck by vehicles or mobile equipment lead to many work zone fatalities or injuries annually. Drivers may skid or lose control of their vehicles more easily when driving on snow and/or ice-covered roads. It is, therefore, important to properly set up work zones with the traffic controls identified by signs, cones, barrels, and barriers to protect workers. Workers exposed to vehicular traffic should wear the appropriate high visibility vest at all times so that they are visible to motorists. Workers should also remain vigilant regarding their surroundings while working in work zones. Pay attention to what is going on around you and where you are stepping.  Identify potential safety hazards and correct or avoid them.

Verifying and Documenting Excavation Marks

I (William Sheppard) was a Safety professional in heavy civil construction for over 10 years, and in that time I investigated numerous incidents of breaking functioning underground utilities.  Not once did anyone get hurt or die.  What are odds of dying from a utility strike, you ask?  The odds of being fatally injured are one in five, for those incidents with an injury.  Those aren’t good odds, so if you have hit a utility four times during your career, do not hit another.

Under every city and town in the state and, yes, below our lakes and rivers, run utility lines, tunnels and other structures.  If you hit them some can kill you, and all will cost you.  You will encounter hidden hazards that kill the striker quickly: gas, propane and electricity.  In addition, you may also encounter those that may kill others: telephone and communication cables and national defense lines.  Many people are unaware of these hazards.  Some who are aware do not respect the danger of underground utilities.

Anyone in Oklahoma can dial 811 or use the OKIE811 online service to notify utilities so they can “mark out” their underground facilities. Always remember, you must call for these utilities to get marked, whether you are constructing a new drive way, or driving posts for a new fence, etc.  The OKIE811 system is free, it is easy, and it’s the law.

• You must call regardless of where the excavation is located. Even if it’s on private property, out in the middle of a field, or on a street with no name – “You must Call.”

• You must call if you are only excavating a few inches or just surface grading. If you move material – “You must Call.”

Each year, approximately 700,000 underground utilities are struck during excavation work, according to the Common Ground Alliance, a group that provides training and education on underground hazards as well as coordinating the “OKIE811 – Call Before You Dig System.”  If you’re lucky and no one is fatally injured, the cost of one utility strike may result in serious financial losses. Additional costs can be fines levied by the utility that can no longer provide service to its clients. These fees can range around $10,000 per hour for loss of service. If you shut down a hospital or stop work at a factory, you will likely pay for their losses too.

It has been my professional experience there are two steps that can help eliminate and reduce excavating hazards - verifying and documenting utility mark out.  Here are some tips to help you, the excavator, work safely and save your municipality money:

Upon arrival at the worksite, prior to beginning the excavation, an excavator should do the following:

• Verify that the worksite matches the OKIE811 one-call request and is timely

• Verify that all facilities have been marked and review the color codes if in doubt

• Verify all service feeds from buildings and homes near the worksite

• Check for any visible signs of underground facilities, such as pedestals, risers, meters and new trench lines

• Check for any facilities that are not members of the one call center and contact someone to get them located

It is important for excavators and locators to document the location of markings before excavation work begins.  The primary purpose of this best practice is to avoid unnecessary litigation and expensive legal fees for all parties involved.  Additionally, documenting marks is an excellent idea, as marks will be covered by spoils or degraded by weather and construction equipment and there could be, if not caught during the mark-out verification process, mismarked utilities.  In most situations when underground facilities are not properly marked, excavators have no way of knowing where underground utilities are located.  If located markings are adequately documented through the use of photographs, video, or sketches before excavation work begins, it is easier to resolve disputes if an underground facility is damaged as a result of improper marking, failure to mark, or markings that have been moved, removed, or covered.  Make sure to capture documentation (measurements) of marks in relation to permanent landmarks like large rocks, utility poles, pedestals, gates, fences and buildings.

Governmental Fleets Not Covered by FMSCA Regulations? Think Again!

The Federal Motor Carrier Safety Administration (FMSCA) was established January 1, 2000, to regulate the trucking industry in the U.S.  The primary mission of the FMSCA is to improve the safety of commercial motor vehicles and truck drivers through the enactment and enforcement of safety regulations.

One question Oklahoma cities and towns ask themselves is whether FMSCA regulations apply to governmental fleets.

Many Oklahoma cities and towns believe they are exempt from FMSCA regulations governing truck weight limits and other safety regulations.  It is true that governmental fleets have exemptions for emergency vehicles and snow and ice control equipment.  However, government fleets are not exempt from operating a safe vehicle as defined by FMCSA regulations.

Oklahoma municipalities may be exempt from the highway loading limits; however, they are still subject to vehicle design loading restrictions.  For example, if you plan on loading the rear axle of a flatbed or dump truck to 26,000 lbs., the axle (including springs and tires) must be rated for at least 26,000 lbs.  Otherwise, the flatbed truck used in this example would be considered an unsafe vehicle as mandated by FMVSS (Federal Motor Vehicle Safety Standards).

The three common infractions for government fleets are driving without a CDL (Commercial Driver’s License), not conducting drug and alcohol testing when required and oversize or overweight municipal dump trucks, refuse haulers, or jet-rodders.  It is noteworthy that when municipal vehicles travel to other states, the size and weight violations for these vehicles are left entirely to the discretion of the state in which they are located.  It pays to be aware of the laws of states your fleet may be traveling into.

Over the last decade more and more states have adopted most, or all, of the FMCSA regulations as their regulatory guidelines.  It is important to note that exceptions for governmental agencies only apply to particular chapters and/or sub-chapters of the FMCSA regulations.  If your agency leaves its municipal boundaries or crosses a state line, regulations may apply to your agency in different ways. 

On a related note, private entities doing government contract work, such as for-hire hauling, may  mistakenly believe that FMSCA regulations do not apply to them when they are working for a government agency.  The municipal exemptions do not apply to these private entities, even when they are doing contract work for a municipality.

Post-Incident-Interest

Government vehicles are not targeted by law enforcement for FMSCA violations.  However, accidents can involve serious ramifications for vehicles with FMCSA safety violations.  If you’re involved in a serious accident, Highway Patrol has the right to impound your vehicles to investigate the incident under FMSCA guidelines.  This is the same way they would treat other carriers; they don’t have special guidelines to follow for governmental agencies.  They will ask for the vehicle’s driver’s vehicle inspection report (DVIR), maintenance and inspection records, and the driver’s file.

It is important to know there is no exception to random annual drug/alcohol testing for all CDL drivers.  All municipal employees who operate vehicles requiring a CDL are subject to the CDL and drug testing requirements.  Only very specific, very narrow exceptions sometimes apply and most municipal fleets do not fit exemptions in these areas.

What are the consequences of violating FMCSA regulations? They are the same for municipalities as for anybody else. The operator of the vehicle could be ticketed. The driver could be ticketed or warned.  If your vehicle is overweight, and you are in a state that enforces that, then you are going to get an overweight ticket. Oklahoma does enforce weight limits.

For more information on CDL drug testing, driver files and FMCSA regulations, contact William Sheppard, OMAG Risk Management Analyst, at wsheppard@omag.org or (800) 234-9461.

Body Worn Video and Records Retention

BODY WORN VIDEO AND RECORDS RETENTION
With the popularity and affordability of Body Worn Video (BWV) equipment, many OMAG members are purchasing devices for their police officers.  Members learn quickly that the expense of the equipment purchase doesn’t compare to the cost of storing the video or data. OMAG Legal receives regular inquiries regarding storage/retention requirements and issues when it comes to BWV. As a service to our members, OMAG’s Legal and Risk Management Departments have developed this article addressing the most frequently asked questions regarding BWV retention.  

As of this writing, there is no legal obligation to store body (or dash) camera videos for any length of time. As such, the decision to store or not store is left to the municipality subject to the requirements of State law. The municipality should consider adopting a retention policy that takes into account the legal factors outlined in the statutes discussed below. In particular, if there is video of a use of deadly force (whether it causes death or just injuries or even where no one is actually hurt), those videos should be preserved (OMAG recommendation) and should be sent to OMAG Legal for review. Videos depicting a use of force incident causing significant bodily injury should also be preserved (OMAG recommendation).  The Statute of Limitations for Civil Rights claims is 2 years and there is a 6 month grace period to serve a Civil Rights suit after it is filed. For video capturing incidents which may lead to a Civil Rights claim, a 3 year retention would be ideal and a best practice.

The following Statutes are implicated when determining whether BWV videos should be preserved.

OPEN RECORDS ACT
“In addition to other records which are kept or maintained, every public body and public official has a specific duty to keep and maintain complete records of the receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto, except that such records may be disposed of as provided by law.” 51 O.S. 24A.5. “Except as may be required in Section 24A.4 of this title, this act does not impose any additional recordkeeping requirements on public bodies or public officials.” 51 O.S. §24A.18. So the Open Records Act applies to records already in existence but only requires that financial records be kept. And even financial records can be disposed of “as provided by law.” Law Enforcement records have a specific statute, Section 24A.8, which mirrors this general non-requirement “Nothing contained in this section imposes any new recordkeeping requirements. Law enforcement records shall be kept for as long as is now or may hereafter be specified by law. Absent a legal requirement for the keeping of a law enforcement record for a specific time period, law enforcement agencies shall maintain their records for so long as needed for administrative purposes.” 51 O.S. §24A.8(C); see also Oklahoma Assoc. of Broadcasters v. City of Norman, 2016 OK 119, ¶¶25-30 390 P.3d 689 (Sec. 24A.8 is part of the entire Act and any ambiguities regarding disclosure obligations will be resolved in favor of disclosure). The question is whether any other law would apply because the Act may not require retention but it does specifically limit that “this act” does not impose requirements thus opening the door for other Statutes.

RECORDS MANAGEMENT ACT
“"Local record" means a record of a county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.” 67 O.S. §203(c). “The governing body of each county, city, town, village, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law shall promote the principles of efficient records management for local records. Such governing body shall, as far as practical, follow the program, established for the management of state records. The Administrator shall, insofar as possible, upon the request of a governing body provide advice on the establishment of a local records management program.” 67 O.S. §207. 

“[S]hall, as far as practical, follow the program, established for the management of state records.” The Attorney General has declined twice to say what “as far as practical” means. See 2001 OK AG 46, ¶27, 2002 OK AG 13, ¶8 (in both instances the Attorney General opines that this is beyond the scope of the his opinion authority under 74 O.S. §18b(A)(5)). There is no need to fret: the Act delegates the authority to draft records retention policies to each agency of the state. 67 O.S. §206. The guidance in drafting a policy from the administrator is “How long do I keep records? Each record has its own disposition/retention schedule, which indicates the minimum length of time the record should be kept. A record’s retention period is based on its administrative, fiscal, legal or historical value.” Link. The Act does state “Except as otherwise provided by law, no state record shall be destroyed or otherwise disposed of unless it is determined by the Archives and Records Commission that the record has no further administrative, legal, fiscal, research or historical value.” 67 O.S. §210. §206(A)(1) and (3) arguably create a Cost/Benefit Analysis approach to the adopting of policies on retention: “[Each Agency head shall] Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency” and records can be submitted to destruction when the record is “not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping.”

OMAG recommends that each municipality adopt policies on retention that take into account whether the record is needed for current business transactions and, if not, whether the record has administrative, legal, fiscal, research and historical value of records and then provide for their retention based on those factors. 

UNIFORM ELECTRONIC TRANSACTIONS ACT
Two defined terms that are relevant to the discussion are “"Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means” and “"Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.” 12A O.S. §15-102(9) & (11). So the act is going to apply to cities and towns, but the Act is very deferential to government to decide its retention for itself: “Each governmental agency of this state, in cooperation with the Archives and Records Commission, shall determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records.” 12A O.S. §15-117. The Commission that is referenced was originally created by 74 O.S. §564, but it’s since been moved to 67 O.S. §305. The statutes limit the jurisdiction of the Commission to the State and its Agencies and does not define State as including political subdivisions.

OMAG’s opinion is that this Act applies to  municipalities and would apply to body cam video, but imposes no affirmative requirements on retention.

BWV CATEGORIES
Police Officers utilizing BWV devices must adhere to a department policy that not only governs the initiation and termination of recording, but also the categorizing of the recording.  At the end of recording, or end of shift, the officer must choose if the video segments are critical, non-critical, or would be considered evidence.   For the purposes of BWV categories, a few examples of critical, non-critical, and evidence are listed below:

I.    Critical
  a.    Vehicle stop where seizure and/or arrest is made
  b.    Injury to an officer or suspect
  c.    Use of force
  d.    Formal or administrative complaint/investigation
  e.    Or as determined by policy
II.    Non-critical
  a.    Warnings
  b.    Tickets
  c.    Routine interactions with public
III.    Evidence
  a.    Any images or video captured that an officer reasonably believes constitutes evidence in a criminal case

OMAG recommends a 3 year retention for a critical category and a 180 day retention for non-critical category.  Evidence should be maintained for the amount of time required by statute, until the case is adjudicated, or all appeals have been exhausted. 

Body Worn Video and Records Retention was written by Matthew Love and Kevin McCullough.  You may contact the authors at mlove@omag.org or kmccullough@omag.org .  The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.
 

The Probationary Period

Facts About the Probationary Period

Did you know?

1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.

2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.

3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract. When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking? “I have a permanent job for at least 90 days.” Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.

4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.

5. Probationary periods do not protect against lawsuits. Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc. And, there are limited situations where probationary employees can sue for due process violations. For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

1. Be clear about at-will employment status. Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.

2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations. Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.

3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved. If the employee is having performance issues, offer detailed guidance and provide additional training if necessary. Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.

4. Encourage supervisors to ask HR for help if there is a concern. Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help. For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance. Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.

5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it! If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.