On Tuesday, July 11, 2017 at 1: 00 PM Eastern, join Jordan B. Schwartz, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, for a complimentary webinar regarding “Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues.”
Employers’ perceptions about their legal responsibilities for certain workers is not always reality. Although an employer may classify workers as temporary workers or independent contractors, that does not mean the Department of Labor takes the same view. At the tail end of the Obama Administration, DOL was vocal about its belief that most workers should be treated as employees, insinuating that in most cases, employers will be accountable for the specific obligations of an employer-employee relationship. The Trump Administration is moving in the other direction, but a lot of questions remain unanswered or muddled. DOL has also been cracking down on employee misclassification and division of responsibility among multiple employers. Additionally, employers continue to have certain safety and health related obligations and potential OSHA liability depending on their role at multi-employer worksites or in joint employer situations.
It is essential for employers to carefully evaluate the employment relationship and their own individual function in the multi-employer context.
During this webinar, participants will learn:
- Criteria used to evaluate the employer-employee relationship
- Employers roles on a multi-employer worksite and the specific obligations associated with each role
- Guidance on how to clearly establish an independent contractor relationship
- How to lawfully and effectively manage temporary workers at your workplace
Here is a link to register for this webinar. Continue reading
By Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo
As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members. Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”). The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union. Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.
However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns. There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.
Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union. The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists. A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading
On June 6, 2017, Eric J. Conn and Kate M. McMahon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA Interpretations and Variances: Regulatory Strategies Resurrected in a Trump Administration.“
A new world order has taken hold in Washington, DC, and with it, we expect OSHA to be much more open to employers’ views about the regulatory landscape. Employers may now have an opportunity to obtain favorable OSHA interpretations of existing regulations, and historically rare Variances.
This webinar reviewed the regulatory strategies that had been effectively foreclosed during the Obama Administration, but which may now reemerge, allowing employers to craft practical solutions to regulatory burdens while continuing to keep workers safe.
Participants in this webinar learned about the following:
- The process OSHA follows to develop and issue letters of interpretation of its regulations and how to influence that process
- Strategies for advanced groundwork to maximize the likelihood of favorable regulatory interpretations
- How and when to apply for and obtain regulatory variances
- How to insulate your company from legal exposure when engaging with OSHA about regulatory interpretations and variances
Here is a link to a recording of the webinar. Continue reading
By Eric J. Conn and Dan C. Deacon
In the final year of the Obama Administration, OSHA published a controversial amendment to its Injury and Illness Recordkeeping Rule known as the “Improve Tracking of Workplace Injuries and Illnesses” Rule. As published last year, the new Final Rule significantly changed employers’ obligations under OSHA’s recordkeeping scheme. Among other hotly contested provisions, the new rule would require employers, beginning July 1, 2017, to proactively submit their employee injury and illness recordkeeping data to OSHA, so that OSHA could publish the data for all the world to see.
In a dramatic, but not unexpected, move last week, OSHA suspended this controversial data submission requirement with no word on when – or whether – a new deadline would be set for the data submission.
Telltale signs that the new Administration was rethinking the data collection requirement, and especially the plan to publish data, were clear well before last week. OSHA stated at the time the rule was published in May 2016 that it would develop a secure portal into which employers would submit the data, and that the portal would be live by February 2017, well in advance of the July 1st data submission deadline. We understand the development of the database was completed, and learned that OSHA beta-tested the portal with the help of a few major national employers and employer organizations.
Nevertheless, Winter and Spring came and went with no public sign of the secure data portal, or update from OSHA about how precisely the database would function or when it would go live. Since we are so close to the July 1st submission deadline and still no database with which employers could begin to get familiar, it was not surprising that on May 17th, OSHA updated its website to officially announce a reprieve from the looming July 1st deadline, stating:
OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.
Our expectation is that the new Administration will Continue reading
OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges. As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.
Participants in this complimentary webinar learned about:
- Requirements of OSHA’s Electronic Injury Recordkeeping data submission
- The status of OSHA’s new database to receive injury data
- OSHA’s policy on publishing the injury data received from employers
- The Anti-Retaliation Elements of the E-Recordkeeping Rule
- The status and future of this new Final Rule
- The fate of “Volks” Recordkeeping Statute of Limitations Rule
This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series. Plan to join us for the remaining complimentary monthly OSHA webinars. Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.
If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.
By Lindsay A. Disalvo
On Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the first Secretary of Labor in the Trump Administration. As we reported in an earlier article when Acosta was first nominated by Pres. Trump, in this role, Sec. Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws and regulations.
The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee. This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.
Specifically, during the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately eight months. In 2003, President Bush appointed him to Head the Civil Rights Division at the U.S. Department of Justice’s , a position which he held for about two years, before being appointed to serve as the United States Attorney for the Southern District of Florida. Most recently, Acosta was the Dean of Florida International University’s School of Law.
At this point, it is still uncertain what jurisprudence Acosta will bring to the role of Secretary of Labor. The Trump Administration and its initial Secretary of Labor nominee, Andrew Puzder, who withdrew from consideration back in February, have taken aggressive stands on deregulation. However, Acosta’s positions on regulation and enforcement have not been as clearly expressed, and his prior experience as a prosecutor may suggest a more measured approach in managing the enforcement responsibilities of the various agencies under his direction. We will have a better idea of Acosta’s approach soon, however, because there are a number of time sensitive issues that will need his prompt attention upon being sworn in.
In particular, we expect that one immediate priority for Acosta will be Continue reading
On April 11th, Andrew J. Sommer and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “New Cal/OSHA Issues that California Employers Must Understand.”
The state of California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, is perhaps the most aggressive and enforcement-heavy approved state OSH Program in the nation. California employers face a host of requirements that other employers around the country do not. Likewise, the Cal/OSHA inspection and appeal process creates several unique landmines for California employers.
In light of new Cal/OSHA standards taking effect in 2017 and others on the horizon, this is the perfect time for companies doing business in the Golden State to revamp their safety programs and take necessary steps to ensure compliance with the latest Cal/OSHA safety regulations.
Participants in this complimentary webinar learned about the following:
- Cal/OSHA’s New Repeat Violation Rule
- Cal/OSHA’s New Workplace Violence Rule for Health Care Facilities
- New Law Mandating the Development of Heat Illness Prevention Regulations for Indoor Workplaces
- Changes to Cal/OSHA Penalties on the Horizon
- Other Industry Specific Developments
Here is a link to the recording of the webinar. Continue reading
By Andrew J. Sommer and Eric J. Conn
Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan. The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.
Rules Apply to Health Care Facilities
Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior. The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:
“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which  persons are admitted for a 24-hour stay or longer.”
Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:
- Home health care and home-based hospice;
- Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
- Drug treatment programs;
- Outpatient medical services to the incarcerated in correctional and detention settings.
Immediate Requirement to Begin Reporting Violent Incidents
Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving Continue reading
On March 28, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s old “Standards Improvement Project” and Pres. Trump’s new Executive Orders to Slash Regulations.
OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards. There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial. Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.
What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids. Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan. Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations. The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them. Trump intends for these task forces to reduce what it deems expensive or unnecessary rules. OSHA rules may be on the chopping block.
Participants in this webinar learned about:
- The origins and intent of the Standards Improvement Project
- A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
- Use of the Congressional Review Act to repeal numerous Obama-era regulations
- Pres. Trump’s executive orders designed to slash regulations
- Other steps by the Trump Admin. to “Dismantle the Regulatory State”
Here is a link to a recording of the webinar. Continue reading
By Kara M. Maciel and Eric J. Conn
The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget. The President’s proposed budget expressly calls for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts. It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities. The budget plan also purports to shift more funding responsibility to the states with labor related programs. Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.
These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion. Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.
The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact on DOL’s ability to carry out both policy initiatives under former President Obama as well as many of the Department’s longstanding programs.
The business community welcomes Trump’s effort to rein in what has been viewed as an intrusive, enforcement-heavy Labor Department, but we caution not to count chickens yet. These proposed cuts will undergo heavy scrutiny by Congress before any budget is finalized. The President’s spending plan is only the first step in months of negotiations between the White House and both houses (and parties) in Congress. Pres. Trump will put forward a more detailed spending proposal in May, and various legislative committees will scrutinize his requests, calling on Cabinet Secretaries, Agency Heads, and others in the Administration to testify about or otherwise explain their spending needs and requests.
Key Takeaways from Trump’s Budget Blueprint
While the administration provided estimates for some of the proposed cuts, it did not specify where the majority of the budget cuts would come from. What we do know is that the proposed budget would Continue reading
Washington Legal Foundation just published Eric J. Conn’s “Legal Opinion Letter” article regarding OSHA’s new “Volks Rule” attempting to circumvent the D.C. Circuit ruling limiting OSHA’s statute of limitations for injury and illness recordkeeping violations from 5½ years to six months.
Below is a summary of the article with an update about Congressional action scrutinizing the Rule, and here is a link to the full article.
In the waning days of the Obama Administration, OSHA promulgated a new rule purportedly “clarifying” employers’ continuing duty to correct injury and illness recordkeeping logs for the entire five-year period the logs must be kept. See 81 Fed. Reg. 91,792 (Dec. 19, 2016). The final rule, dubbed the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” amended OSHA’s existing recordkeeping regulations in order to circumvent a 2012 decision of the United States Court of Appeals for the District of Columbia in AKM LLC v. Secretary of Labor (Volks II), 675 F.3d 752 (DC Cir. 2012). This “clarifying” rule is unlawful and should be repudiated.
OSHA’s Injury and Illness Recordkeeping regulations require employers to record certain injuries and illnesses within seven days of the incident and also to preserve a copy of those records for five years. 29 C.F.R. Part 1904 et seq. Separately, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to issue citations alleging violations of regulations adopted under the Act. 29 U.S.C. §§ 651-678. The statute of limitations in the OSH Act states, however, that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).
The article provides a historical look at how OSHA interpreted and enforced its injury and illness recordkeeping regulations Continue reading
Kate M. McMahon and Eric J. Conn
On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century. OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910). Begun in 1990, it took OSHA all of 27-years – longer than it takes the Agency to promulgate its comprehensive health standards, which is saying quite a bit. But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.
While the new rule may fall prey to to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules. The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders. Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.
Significant Provisions of the New Standard
It is not surprising that the new rule by and large escaped industry legal challenge. For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure. Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance. For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.
However, the new rule does impose some new requirements it is important to be aware of and understand. Continue reading
On January 25th, attorneys from Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s 2016 in Review and the Top 5 OSHA Issues to Track in 2017.
The ball has dropped, the confetti has been swept out of Times Square, and 2016 (and the Obama Administration) is in the books. It is time to look back at the year and take stock of what we learned from and about OSHA over the past year. More importantly, the question on everyone’s mind (well, maybe just ours), is what can we expect from OSHA in the first year of the Trump Administration?
This webinar event reviewed OSHA enforcement, rulemaking and other developments from 2016, and forecast the Top 5 OSHA Issues employers should monitor and prepare for in the New Year and the new Administration.
Participants learned the following: Continue reading
By Eric J. Conn
This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).
Specifically, by February 1st every year, employers must:
- Review their OSHA 300 Log(s);
- Verify the entries on the 300 Log are complete and accurate;
- Correct any deficiencies identified on the 300 Log;
- Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
- Certify the accuracy of the 300 Log and the 300A Summary Form.
The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.
Four Common 300A Mistakes that Employers Make
We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading
By Nicholas W. Scala and Justin Winter, Co-Chairs of Conn Maciel Carey’s national MSHA Practice
As a parting gift from Joe Main, the departing Assistant Secretary of Labor for the Mine Safety & Health Administration (MSHA), MSHA released this week the final rule for Examinations of Working Places in Metal and Nonmetal Mines. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017.
The effective date, when MSHA will begin enforcement of the new provisions within the final rule, is May 23, 2017 or 120 days following publication on January 23rd. Until the effective date, the existing provisions of §56/57.18002 will remain the standard for enforcement purposes.
Under the current standard mine operators must perform a workplace examination at least once per shift, maintain a record for twelve (12) months which must include the name of the examiner, locations of areas examined and the date.
The final rule, announced on January 18, 2017, will increase the responsibilities for mine operators to comply with the workplace exam standard. Effective May 23, 2017 operators must:
- Perform a workplace examination BEFORE any miners begin work in an area;
- Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
- Maintain a record of the examination for twelve (12) months, which includes:
- The name of the examiner
- Date of the exam
- Locations examine;
- Descriptions of any and all adverse conditions found during examination (even if corrected immediately)
- Date of corrective action
- Make records available to MSHA inspectors AND miner representatives, providing copies upon request.
By Jordan B. Schwartz and Eric J. Conn
OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern. In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.
Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify. In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue. This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.
OSHA Bathroom Requirements
In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:
- providing employees with prompt access to a bathroom; and
- ensuring the workplace bathroom is maintained in a sanitary condition.
Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading
By Andrew J. Sommer and Lindsay A. DiSalvo
President-elect Donald Trump has chosen Andrew Franklin “Andy” Puzder to nominate as his Secretary of Labor, according to Trump’s transition team. Mr. Puzder is the CEO of CKE Holdings, the parent company of Hardee’s and Carl’s Jr. He has been a vocal critic of the Obama Labor Department’s overtime regulations and efforts to increase the federal minimum wage. As Labor Secretary, Mr. Puzder will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.
Puzder on Wage and Hour Issues
An increase in the federal minimum wage and an expansion in overtime eligibility have been priorities for the outgoing Secretary of Labor Thomas Perez. On Sec. Perez’s watch, the Department of Labor has issued new overtime regulations increasing the minimum salary threshold level in order to qualify an employee as exempt from overtime. Mr. Puzder denounced this new overtime rule. In an op-ed piece earlier this year in Forbes, Puzder said:
“[the overtime regulation] will add to the extensive regulatory maze the Obama Administration has imposed on employers, forcing many to offset increased labor expense by cutting costs elsewhere. . . . [This cost cutting would result in reduced opportunities, bonuses, benefits and promotions.]”
The status of the new overtime rule is presently uncertain after a Texas federal court temporarily blocked the rule from taking effect. The U.S. Court of Appeals for the Fifth Circuit has just granted the Department of Labor’s request to expedite the appeal from that preliminary injunction order, but that appeal is unlikely to be decided before Trump is inaugurated as the next president on January 20, 2017. Accordingly, under Mr. Puzder’s leadership, the DOL could very well withdraw the pending appeal before a decision is issued by the Fifth Circuit, and otherwise not support the new overtime rule. Even if the overtime rule eventually takes effect, Puzder’s arsenal will include the authority to engage in rulemaking to roll back or modify the overtime rule, consistent with the notice and comment process under the federal Administrative Procedures Act.
Other immediate measures Puzder could take to shift or reverse the direction of the Obama DOL would be to Continue reading
Presented by Kara M. Maciel and Eric J. Conn
On Tuesday, December 13, 2016 at 1:00 PM Eastern, join Eric J. Conn and Kara M. Maciel of Conn Maciel Carey’s national Labor and Employment and OSHA Practices, for a complimentary webinar regarding Employee Access to Sanitary Bathrooms, ADA Accessibility, and Transgender Bathrooms.
Although not historically a hotbed of OSHA / Employment law activity, access to bathrooms by both employees and members of the public has become a high profile issue of late. OSHA has always required employers to provide employees with prompt access to sanitary toilet facilities, to minimize adverse health risks. Recently, however, OSHA and other federal, state and local authorities began to prohibit discriminatory practices with regard to restroom access based on the principle that individuals have the right to use facilities consistent with their gender identity. There are also a host of requirements under the Americans with Disabilities Act that must be met for a bathroom to be considered accessible and usable by an individual with a disability. This webinar will review the requirements in these areas, and provide specific strategies to address this new and complex area of the law.
Participants in this complimentary webinar will learn about the following:
- OSHA rules regarding accessibility to bathroom facilities and sanitation issues
- Transgender workplace obligations
- Federal Agency Interpretations of Title VII to include discrimination based on gender identity or transgender status
- State laws regarding discriminatory practices in regard to restroom access
- Best practices for overcoming typical bathroom ADA accessibility issues
Here is a link to register for this webinar. If you missed Continue reading
By Eric J. Conn
By Law the Anti-Retaliation Provisions of OSHA’s New Electronic Recordkeeping Rule Become Effective December 1st — Tomorrow!
On November 28, 2016, the federal district court Judge in the Northern District of Texas hearing Industry’s legal challenge to the anti-retaliation portions of OSHA’s new electronic recordkeeping rule (i.e., limits on injury reporting requirements, post-incident drug testing, and safety incentive programs), issued an Order denying Industry’s motion for a preliminary injunction that would have prohibited OSHA from enforcing these controversial new provisions. The Court’s Order clears the way for the new provisions to become effective and enforceable as of December 1, 2016.
Accordingly, it is not only prudent but perhaps imperative that employers immediately evaluate their safety incentive programs; drug testing programs; management bonus compensation schemes; and injury reporting policies to determine whether they comport with the new rule.
The rule adds new language to OSHA’s injury and illness recordkeeping regulation at 29 C.F.R. 1904.35(b)(1):
“reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. . . . [A reporting procedure] is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
Because this language is so broad and vague, it is impossible to understand from the face of the rule what policies and conduct are required or prohibited. OSHA acknowledged that, as well, and Continue reading
By Eric J. Conn and Dan C. Deacon
OSHA’s new electronic injury recordkeeping rule includes anti-retaliation provisions that create new employer obligations and prohibitions related to internal employee injury reporting procedures, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions. Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses. Until very recently, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.
On October 19, 2016, OSHA issued a Guidance Memorandum offering its interpretation of the vague, controversial anti-retaliation provisions of OSHA’s new electronic injury and illness recordkeeping rule. The timing of OSHA’s issuance of the October Guidance is particularly noteworthy, given developments in the legal challenge filed by Industry plaintiffs in a federal district court in Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D), which we have described in previous articles. Specifically, just one week before issuing the Guidance Memo, OSHA deferred the enforcement effective date of the anti-retaliation provisions, for the second time, from November 1st to December 1st. This second delay of the anti-retaliation rule was done at the specific request of the Texas judge overseeing the case, who is considering industry’s request for a Preliminary Injunction.
The Guidance is not unexpected. Amidst growing frustration from Industry about the rule and its lack of clarity, OSHA promised last summer when it decided to first postpone the enforcement date from August 1, 2016 to November 1, 2016, to publish guidance explaining the new provisions. Indeed, OSHA’s defense against Industry’s motion for a preliminary injunction against the rule is that there is no way Industry can show irreparable harm from the new rule because there was no way for employers to know what the rule actually prohibits and requires.
Before this Guidance Memo was released, OSHA had provided little understanding of precisely what Continue reading