Big Lots Recalls Garden Swings Due to Fall Hazard

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Wilson & Fisher Garden Swings

Units: About 6,900

Importer: Big Lots, of Columbus, Ohio

Manufacturer: Anji Jiayi Garden Supplies Company, Xiaofeng Town, China

Hazard: The wooden swing’s seat can break while in use, posing a fall hazard to the consumer.

Incidents/Injuries: Big Lots has received 14 reports of swing seats breaking, resulting in four reports of back pain and five reports of scratches and scrapes.

Description: This recall involves Wilson & Fisher log-style swing sets sold in a natural wood finish. The swing’s two-person bench seat is suspended between two wooden A-frame supports. Assembly instructions sold with the swings have item number JY1107 and SKU number 210020400 printed on the sheet.

Sold exclusively at: Big Lots stores nationwide from March 2012 through June 2012 for about $130.

Manufactured in: China

Remedy: Consumers should immediately stop using the recalled swing sets, detach the bench seat and return it to any Big Lots store for a full refund. Consumers should destroy the remaining components.

Consumer Contact: For additional information, contact the firm toll-free at (866) 244-5687 between 9 a.m. through 5 p.m. ET Monday through Friday, or visit the firm’s website at www.biglots.com and click on recalls.

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Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12282.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.

Infant Safety While Sleeping

Here’s some information from the Consumer Products Safety Commission about infant safety while sleeping.  Of course, as I’ve mentioned before, infant injuries or death can also be the result of  personal injuries or wrongful death due to product liability, but here are ways that you can protect yourself and your child from such situations:

CPSC staff estimates that between 1992 and 2010 there were nearly 700 deaths involving infants 12 months and younger related to pillows and cushions placed in or near a baby’s sleep environment. Nearly half of the infant crib deaths and two-thirds of bassinet deaths reported to CPSC each year are suffocations caused by pillows, thick quilts and/or overcrowding in the baby’s sleeping space.

The safest place for a baby to sleep is in a safe crib. A safe crib is one that meets CPSC’s strong federal safety standards and is clear of clutter. That means no pillows, no heavy quilts, no thick blankets, no pillow-like stuffed toys or other large stuffed toys and no child carrying devices, recliners or sleep positioners.

Many parents are aware of the Back-to-Sleep Campaign to reduce the risk of SIDS. Putting your baby to sleep on his or her back also helps prevent suffocation. Be sure to always place your baby on his/her back on a tight-fitting, firm, flat mattress or any surface that comes with the bassinet and play yard. Crib mattresses need to fit tightly, too.

I use a pillow, why shouldn’t my baby?

This medical examiner re-creation shows a hazardous situation. Babies should not be placed to sleep on anything pillow-like or in a crib filled with items. Bare is Best.

Babies and adults are different. A pillow can block a baby’s nose and mouth and can cause a baby to suffocate. On average, there are 32 infant deaths a year on pillows used as mattresses or to prop babies’ heads. The majority of these deaths involve infants in their first three months of life.

Parents can safely start using pillows for children who are 1½ years old, about the same age at which parents can safely move children out of the crib and either into a toddler bed or onto a mattress on the floor.

No thick blankets? My baby will be cold.

If you’re worried about the temperature in your baby’s room, dress your baby in warm clothes. You can also put a thin blanket on your baby. Do not use thick blankets or quilts. Young babies can and do get their faces stuck in thick blankets and suffocate.

Should I use a ‘sleep positioning’ device?

No. CPSC and the U.S. Food and Drug Administration began warning parents in September 2010 to stop using sleep positioners. There is currently no scientific evidence supporting medical claims that have been made regarding these products. CPSC and FDA are aware of 13 reports of infants between the ages of 1 and 4 months who died when they suffocated in these positioners or when they became trapped between a sleep positioner and the side of a crib or bassinet. CPSC has also received dozens of reports of infants who were placed on their backs or sides in sleep positioners, only to be found later in potentially hazardous positions within or next to the sleep positioners.

A major concern is the use of these products to keep a baby on its side, which is an unstable position. Infants placed on their sides are more likely to flip onto their stomachs because their backs are pressed against the side of the sleep positioning product. Because these products are designed to keep a baby from changing positions, infants who end up on their stomachs are then unable to free themselves. Young infants can suffocate because they don’t have the neck strength to move their heads.

Is it safe to put a car seat, carrier, infant recliner or other item inside the crib with my infant in it?

No. This is not a safe practice. Many of these items can tip over when placed on top of an uneven surface such as a mattress. Babies have also flipped over the side of these products and become wedged between them and other items in the crib. Since 2003, CPSC is aware of at least 9 deaths of infants in car seats, carriers, infant recliners and bouncy seats that were placed on a soft surface such as a bed, crib, play pen, air mattress or sofa.

Can I put toys in the crib/play yard/bassinet?

An uncluttered sleeping space is the safest sleeping space for a baby. Again, Bare is Best.

Toys attached to the sides of a crib should be securely attached to a single side. Make sure the toy does not contain any cords or straps that could wrap around a child’s neck. Avoid hanging crib toys with protruding parts that a child can use to pull themselves up and out of the crib or from which small parts might detach.

Don’t fill your baby’s crib, play yard or bassinet with large toys or decorative or nursing pillows, thick blankets or comforters. This is particularly important for children who are 4 months and younger.

Is there anything I need to know about my baby monitor?

All baby monitors with cords and other corded items need to be placed at least 3 feet away from a crib. CPSC knows of seven deaths and three near-strangulations since 2002 involving video and audio baby monitor cords. The monitors and cords were placed within a child’s reach.

I use a bassinet. What should I look for in my bassinet to make sure it’s safe?

CPSC is working on a new bassinet safety rule. Before buying or borrowing a bassinet, check this bassinet recall list to make sure the product has not been recalled. Make sure to follow the bassinet’s setup instructions and be sure that all fasteners are secure, including all snaps and Velcro. Use only the mattress supplied by the manufacturer for your specific bassinet and make sure that you assemble the bassinet properly. Improper assembly can lead to baggy or collapsed sides, gaps and openings that are dangerous areas in which babies can get trapped.

Those play yard mattresses are so thin. Won’t my baby be uncomfortable on it?

Play yard mattresses are thin for a reason. The play yard is a flexible structure. Adding extra padding, foam or mattresses to the play yard can cause babies to suffocate in one of two ways:

1. The baby can get his or her face stuck in the added mattress or other soft items or
2. Because of the extra additions, the flexible sides of the play yard can be pressed out. This creates dangerous and deadly gaps between the side and the added material in which a baby can get trapped.

Use only the mattress that came with the play yard. Before buying or borrowing a play yard, check this playpen/play yard recall list to make sure that the product you are using has not been recalled.

A baby should be placed to sleep flat on the thin play yard mattress that came with a play yard, as at left. Gaps such as the one at right can be dangerous and deadly, leading to suffocation.

I don’t want my child to get out of the crib or play yard. Can I put a tent on it?

Once a child is able to stand, do not use a tent with the crib or play yard. Crib tents are not made for, nor intended to, keep children in cribs and play yards. Children have become tangled and trapped in tents that were used to try to keep them in cribs and play yards. CPSC has received at least 27 reports of incidents involving tents used on cribs and play yards, including one death and one near death. CPSC recalled crib tents in May 2012. Do not use the recalled tents.

I need to lift my baby’s head while he’s sleeping. Can I add extra bedding underneath the mattress to raise it?

Seek advice from your pediatrician or health care provider before placing your baby to sleep in a more vertical position. If your doctor advises you to raise a mattress, make sure that no gaps are formed anywhere around the perimeter of the mattress. Also, keep the angle low enough that your baby doesn’t roll or slide down the mattress.

Should I use a bumper pad?

Bare is best when placing a baby to sleep in a crib. By creating the toughest crib safety standards in the world and urging parents to keep pillows, quilts, heavy blankets, and sleep positioners out of the crib, CPSC has made great strides to ensure that babies and toddlers have a safe sleep. Agency staff has previously stated that overstuffed bumper pads can be hazardous and staff is currently re-examining the safety of all crib bumpers, in an effort to provide parents with our best advice. We respect the attention that a number of cities and states have given to the safety of bumpers, and we will continue to use the best science and data available to provide parents with advice that they can trust.

If I use a bumper, is there an age or developmental milestone when I should remove it?

As soon as your child can stand, remove the bumper pads and lower the crib mattressto its lowest position. Toddlers will use anything available to climb out of the crib. Children can fall out of the crib and/or  get entangled in the bumper.

What else should I be aware of when setting up my nursery?

Beware of cords. Never put a crib, bed or furniture close to windows with corded window coverings, because children can climb on them, gain access to the cords, and strangle.  CPSC recommends the use of cordless window coverings in all homes where children live or visit. In addition, keep baby monitor cords, lamp cords, telephone cords, and night light cords at least 3 feet away from the crib. Children can wrap the cords around their necks and strangle.

Source:  http://www.cpsc.gov/onsafety/2012/09/safe-sleep-bedding-pillows-safety-and-more/

Haier America Trading Agrees to $850,000 Civil Penalty for Failure to Report Defective Blenders

The U.S. Consumer Product Safety Commission (CPSC) announced today that Haier America Trading LLC, of New York, N.Y., has agreed to pay a civil penalty of $850,000. The settlement agreement (pdf) has been provisionally accepted by the Commission (4-0).

The settlement resolves CPSC staff allegations that Haier America failed to report immediately to CPSC, as required by federal law, a defect involving its blenders that resulted in nearly 60 incidents and an injury to a consumer’s hand, incidents of personal injuries due to product liability.  The nut on the blender that holds the blade assembly can dislodge during use, allowing the blade assembly pieces to break apart, and/or crack the blender’s glass jar, posing a laceration hazard to consumers.

Haier America sold the blenders through retail stores between October 2006 and October 2009. The company became aware of the incidents and injury between January 2007 and September 2009, yet did not file a full report to the Commission until October 2009.

Federal law requires manufacturers, distributors, and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect that could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard or ban enforced by CPSC.

CPSC and Haier America announced a recall of nearly 54,000 blenders in December 2009.

In agreeing to the settlement, Haier America denies CPSC staff allegations of the defect and that it violated the law.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12280.html

Swimming Pool Safety

According to information compiled from media reports and released today by the U.S. Consumer Product Safety Commission’s (CPSC) Pool Safely campaign, 137 children younger than 15 years drowned in a pool or spa during the traditional summer season of Memorial Day to Labor Day this year. An additional 168 children of that age required emergency response for near-fatal incidents in pools or spas during that period.

“These figures are a strong indication that child drownings are a serious public health problem,” CPSC Chairman Inez Tenenbaum said. “We are losing too many children to drowning, tragically cutting short these young lives and leaving families devastated. While summer is ending, our vigilance in ensuring that all children pool safely must not end. With so many indoor community pools, hotel pools and spas, indoor waterparks, as well as outdoor pools that remain open in warm-weather states, we must continue our efforts to remind everyone to pool safely whenever they are near the water.”

The media figures for this summer show that 54 of these drownings occurred soon after the children left an adult who was in their immediate vicinity, and 31 children drowned despite the presence of others at the pool.

In addition, the media reports from this summer are consistent with CPSC’s annual reports in showing that young children and toddlers are especially vulnerable to drowning – at least 100 of the 137 children who drowned were younger than five. Drowning is the leading cause of unintentional death among children one to four years of age.

Not every child drowning is reported on or tracked by the media. In turn, it takes time for CPSC to compile data of all child drownings from around the country. Each May, CPSC releases reports for drownings and non-fatal submersions for children younger than 15 years of age. CPSC data from 2007 to 2009 shows an annual average of 243 children drowned in pools or spas during the summer months, which is about 63 percent of the average annual drowning figures for these years.

CPSC’s Pool Safely campaign message reinforces the important safety steps: stay close to children in the water, be alert, and watch children in and around the pool at all times.

During the summer of 2012, the following twelve states suffered the largest number of pool and spa drownings for children younger than 15:

	1. Texas (17)		7. Florida (6)
	2. California (10)		8. Illinois (6)
	3. Ohio (9)		9. North Carolina (6)
	4. Arizona (8)		10. Alabama (5)
	5. Michigan (8)		11. Georgia (5)
	6. Pennsylvania (7)		12. New York (5)

CPSC’s 2012 submersion report (pdf) shows on average 390 pool or spa-related drownings occur each year for children younger than 15, based on statistics from 2007-2009. About 5,200 pool or spa-related emergency department-treated submersion injuries occur on average each year for children younger than 15.

The Pool Safely campaign provides information on the simple steps that parents, caregivers and pool owners should take to ensure that children and adults stay safe around pools and spas:

• Stay close, be alert and watch children in and around the pool. Never leave children unattended in a pool or spa; always watch children closely around all bodies of water; teach children basic water safety tips; and keep children away from pool drains, pipes and other openings.
• Learn and practice water safety skills. Every family member should know how to swim. Learn how to perform CPR on both children and adults.
• Have appropriate equipment for your pool or spa. This includes pool fencing, a lockable safety cover for spas, proper drain covers to avoid entrapments, and lifesaving equipment such as life rings and a reaching pole.

The Pool Safely campaign was launched in 2010 to raise awareness about pool and spa safety, as mandated by the Virginia Graeme Baker Pool and Spa Safety Act. This year, the campaign is increasing its focus on populations most at risk of drowning, including children younger than five years old who represent 75 percent of child drowning fatalities on average, and African American and Hispanic children between the ages of 5 and 14 who drown at higher rates than white children, according to the Centers for Disease Control and Prevention. Data from USA Swimming indicates that 70 percent of African American children and 62 percent of Hispanic children cannot swim, making them especially vulnerable to drowning.

About Pool Safely:
The Pool Safely campaign is CPSC’s national public education and information program to reduce child drownings, near-drowning and entrapment incidents in swimming pools and spas. The campaign resulted from the requirements of Section 1407 of the Virginia Graeme Baker Pool and Spa Safety Act (P&SS Act), federal legislation signed into law in 2007, which mandated new requirements for pool and spa safety. Parents, caregivers and the media are encouraged to visit PoolSafely.gov or @PoolSafely on Twitter for vital safety information regarding the prevention of child submersions in and around pools and spas.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12275.html

Pool accidents can also be the result of the fault of a pool manufacturer or other responsible parties.  Please feel free to contact me if you have a personal injury or wrongful death or products liability matter concerning pool safety that you would like to discuss.

Sleeping On The Job — When “Sleep Time” Actually Counts As Working Time

“Sleep time” is an issue that sometimes comes up in overtime cases when trying to determine exactly how many hours an employee has worked in a given week.  The question is — Do hours spent sleeping count as working time that must be paid?

If you’re working less then a 24-hour duty shift, all of the time spent on duty, except bona fide meal periods, is probably hours worked and should be paid.   If you are required to be on duty for fewer than 24 hours, all of the duty time is probably hours worked, even though you are permitted to sleep or engage in other personal activities when not busy. The fact that sleeping facilities are furnished does not make a difference when your time is given to the employer and you are required to be on duty.

When you are required to be on duty for 24 hours or more, you and the employer may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked.  Whether sleeping time counts as working time can be a complicated question.  Federal law not only requires an agreement between you and your employer regarding deducting sleep time and meal periods from hours worked, but also requires that adequate sleeping facilities be furnished to you by your employer.  If you are a truck driver, a team driver or helper, the berth in your truck is regarded as adequate sleeping facilities. However, this rule applies to sleeping berth time only when you are on trips away from home for a period of 24 hours or more.

Federal law further mandates that you are able to enjoy a regularly scheduled uninterrupted night’s sleep, if 8 hours of sleep time is to be deducted.  When your sleep period is interrupted by a call to duty, the interruption must be counted as hours worked. If the interruptions are so frequent that you are not able to get a reasonable night’s sleep, that entire sleep period must be counted as hours worked. This determination is made on the basis of what happens during each sleep period.

As an enforcement policy, the Wage and Hour Division of the U.S. Department of Labor considers that a reasonable night’s sleep means you are able to get at least 5 hours of sleep during the scheduled sleep period. These five hours need not be continuous uninterrupted hours of sleep. If 5 hours of sleep is not possible, the Wage and Hour Division asserts that no sleep time can be deducted from the hours you are required to be on duty.  If you are able to get 5 or more hours of sleep, the sleep time is not considered hours worked. However, your employer can only deduct the actual number of hours spent sleeping, up to a maximum of 8 hours. For example, if you receive 6 hours of sleep, your employer can only deduct 6 hours for sleeping from the work period. This determination is made on the basis of what happens during each sleep period.   Even though you may sleep more than 8 hours, a maximum of 8 hours can be deducted from the 24 hours you are required to be on duty. All interruptions of your sleep must be counted as hours worked.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Legrand Wiremold Recalls Power Strips Due To Electric Shock Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Legrand Under Cabinet Power and Lighting four outlet power strip

Units: About 14,200

Importer: Legrand Wiremold, West Hartford, Conn.

Hazard: The electrical wires are reversed on the receptacles on the power strips, posing a risk of electrical shock.

Incidents/Injuries: One incident was reported. No injuries were reported.

Description: This recall involves four-outlet under-cabinet power and lighting strips model number PX1001. The power strips come in a red package with “Wiremold-Series Part PX1001” printed on the front. The manufactured dates of the recalled products are presented as product date codes January 2011 through June 2012, and are found imprinted on a circle on the bottom with an arrow pointing to the number of the month and the year “11” or “12” in the center. The model number PX1001, and UPC number 0 86698 00125 3, are imprinted on the bottom of the packaging. Power strips that have a star symbol printed in black ink on the packaging and on the back cover of the power strip are not included in this recall.

Sold at: Ace Hardware, Do it Best, Home Depot USA, Sutherlands, True Value Hardware and online at Amazon.com between February 2011 and August 2012 for about $40.

Manufactured in: China

Remedy: Consumers should immediately unplug and stop using the power strips and return them to Legrand Wiremold for a replacement or refund.

Consumer Contact: For additional information, contact Legrand Wiremold at (800) 617-1768 between 8 a.m. to 5 p.m. ET Monday through Friday, or visit the firm’s website at www.legrand.us

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12274.html

Death of Child Prompts Recall of Window Blinds by Blind Xpress

The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Blind Xpress of Livonia, Mich. is announcing the recall of about 139,000 custom-made vertical and 315,000 horizontal blinds. In 2009, a 2-year-old girl from Commerce Township, Mich. reportedly strangled in the loop of a vertical blind cord that was not attached to the wall or floor.

Blind Xpress custom vertical blinds have an adjustment cord that forms a loop that is not attached to the wall or floor. In some instances, this loop has a weighted device at the bottom. The custom horizontal blinds do not have inner cord stop devices to prevent the accessible inner cords from being pulled out. A child can become entangled in a cord loop and strangle.

This recall involves all Blind Xpress custom-made vertical blinds that do not have a cord-tensioning device that attaches to the wall or floor, as well as all horizontal blinds that do not have inner cord stop devices.

The blinds were sold at various blind specialty stores in Michigan, Ohio and Indiana from January 1995 through December 2011 for between $16 and $380. These blinds were manufactured in the United States.

CPSC urges consumers to immediately stop using the window coverings and contact the Window Covering Safety Council (WCSC) to receive a free repair kit. For more information, contact the WCSC toll-free at (800) 506-4636 anytime or visit www.windowcoverings.org

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml12/12273.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter that you would like to discuss.

The “Personnel Authority” Requirement Under The Executive Exemption To Overtime Coverage

As I’ve discussed before, under federal overtime law employees are either “exempt” or “nonexempt.”  Exempt employees are never entitled to overtime regardless of how many hours they work.  Nonexempt employees are entitled to overtime if they work more than forty hours in a given week.

One of the federal exemptions is for “executive” employees.  Several requirements have to be met under federal law for an employee to be covered under the executive exemption:  The employee must be paid a salary, the employee must regularly supervise two or more full-time employees or their equivalent, the employee must have management as the primary jo duty of the position, and the employee must have the authority to hire or fire other employees or give suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees that are given particular weight.  All components of the test must be met or the employee is not exempt and is entitled to overtime for every hour worked over forty in a given week.

That final part of the test, which I call the “personnel prong,” is where I believe many employers are failing the exemption test.  Too many “management” employees do not have the level of personnel authority or input that federal law requires for true exempt executive employees.  In many cases the employee does not have unilateral authority to make significant personnel decisions, such as hiring, firing, demotions, or promotions.  The employee can make recommendations or give input in that regard, but the ultimate personnel authority is held by the supposed manager’s superiors.

Given that common scenario, the argument frequently concerns whether the employer gives the employee’s suggestions, recommendations, and input “particular weight.”  Federal regulations instruct that to determine whether an employee’s suggestions and recommendations are given “particular weight,” factors to be considered include, but are not limited to, whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. Generally, an executive’s suggestions and recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include an occasional suggestion with regard to the change in status of a co-worker. An employee’s suggestions and recommendations may still be deemed to have “particular weight” even if a higher level manager’s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee’s change in status.

This is an area that I believe should be given more attention in overtime cases.  Not enough employees consider whether their personnel authority is sufficient to satisfy the executive exemption test when deciding whether to pursue an overtime claim.  Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.