Are Falls Falling?

On September 26th, OSHA announced that citations for 9 out of the 10 most frequently cited standards noticeably declined since fiscal 2016. According to OSHA data, preliminary violation[1] numbers from last fiscal year dropped following years of declining total inspection numbers.  Deputy Director of the OSHA enforcement branch, Patrick Kapust, particularly noted the steep decline in fall protection citations.  Kapust also mentioned that construction fall-related violations, such as ladders, scaffolding, and training,  remain the most commonly cited, and that construction sites account for close to half of OSHA’s inspections. For your reference, here is the list of preliminary top 10 most-cited violations for fiscal 2017:

  1. Fall protection at 6,072 (down from 6,929 preliminary violations in fiscal 2016)
  2. Hazard communication at 4,176 (down from 5,677 preliminary violations in fiscal 2016)
  3. Scaffolding at 3,288 (down from 3,906 preliminary violations in fiscal 2016)
  4. Respiratory protection at 3,097 ( down from 3,585 preliminary violations in fiscal 2016)
  5. Lockout/tagout at 2,877 (down from 3,414 preliminary violations in fiscal 2016)
  6. Ladders at 2,241 (down from 2,639 preliminary violations in fiscal 2016)
  7. Powered industrial trucks at 2,162 (down from 2,860 preliminary violations in fiscal 2016)
  8. Machine guarding at 1,933 (down from 2,451 preliminary violations in fiscal 2016)
  9. Fall protection training at 1,523
  10. Electrical wiring methods at 1,405 (down from 1,940 preliminary violations in fiscal 2016)





Written with assistance from Ana Ramirez

[1] The violation numbers are preliminary because OSHA inspectors have up to six months following an inspection to issue citations.

The Salary Scare – The City’s Salary Ban Law Takes Effect

This post was written by Barbara E. Hoey and Diana R. Hamar and was originally posted on Kelley Drye’s Labor Days Blog.

Happy Halloween New York City Employers!

Just in time to scare even large employers, beginning October 31, 2017, it will be against the law for employers in New York City to ask about, rely on, or verify a job applicant’s salary history during the hiring process. As discussed in detail in our prior posts, this new legislation also permits disgruntled applicants to pursue claims against an employer for violations of the law either with the New York City Commission on Human Rights or directly in court.

With only a few weeks left before the law goes into effect, employers in New York City should take care in reviewing their hiring policies and practices to ensure compliance with the law.

The New Law

First, this law applies to all employers, regardless of size, in New York City.

The new law prohibits employers from:

(1) “Inquiring about” an applicant’s salary history throughout the entire employment process; and/or

(2) “Relying” on the salary history of a job applicant, when determining an applicant’s salary amount at any stage in the employment process, including when negotiating a contract.

The law defines “salary history” broadly to encompass not just wages but also benefits and any other form of compensation.

It also bans employers from searching publicly available records to obtain an applicant’s salary history.

There are limited exceptions to the ban:

  • First, an employer may consider an employee’s salary history if the applicant voluntarily disclosed his or her salary history “without prompting.
  • Second, an employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.
  • Third, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.

The amendment also excludes: (1) employers acting pursuant to a law authorizing the disclosure or verification of salary history for employment purposes; (2) current employees applying for internal promotions or transfers; or (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining.

If an employer is found to have violated the law, the New York City Commission on Human Rights may impose a civil penalty of up to $125,000 for an unintentional violation and up to $250,000 if the violation is willful and malicious. In addition to civil penalties, an individual who is successful in a civil lawsuit may recover compensatory damages and attorney’s fees.

New York City Commission on Human Rights Fact Sheets

With the effective date of the amendment looming, the New York City Commission on Human Rights issued two fact sheets−one directed to employers and one directed to job applicants − summarizing the key provisions and exceptions to the law. The fact sheets do provide a few illustrative examples that aid in interpreting the law:

  • The employer fact sheet clarifies that the law applies to all employers in New York City regardless of size.
  • The “job applicant” fact sheet states that “most applicants” are protected, regardless of whether the position is full-time or part-time.
  • The law applies to internships as well as independent contractors who do not have their own employees.
  • The fact sheet does not clarify whether the law applies to nonresident applicants. However, we would not advise taking a chance on this. All New York City job applicants should be considered covered.

Guidance for Employers

In advance of the law’s October 31, 2017, effective date, employers should do the following:

  • Review and Revise Forms and Portals – Remove any inquiries regarding salary history from employment applications, background check forms, online portals, or any other forms used during the hiring process.
  • Train – Inform not just recruiting and those in HR, but everyone who gets involved in the interview process, to refrain from directly questioning applicants about their salary histories.
  • Inform contractors and vendors – Employers need to communicate these new obligations to third parties or outside vendors who participate in the hiring process, such as placement firms, temp agencies and recruiters and confirm that contractors and vendors are in compliance with the law.
    • Put these instructions in writing, so you have proof you have told your contractors they need to comply with the law.
  • Background Checks – It is imperative that background checks exclude any inquiries regarding salary history. This is particularly important, since employers who use third-party vendors for background checks typically only see the results of the background check rather than the initial inquiries posed to an applicant. Again, tell your vendors to follow the law.
  • Job postings – If you are posting on job sites like Monster, etc., make sure there are no requests for salary information on those sites.

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No Summer Breaks for the EEOC

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes. Continue Reading

OSHA’s Voluntary Protection Programs Scheduled Makeover

Interested in providing input on the OSHA’s Voluntary Protection Programs (“VPP”)?  The next and final in-person meeting is scheduled for August 28, 2017. If you happen to miss it, worry not, OSHA will accept public comments through September 15, 2017. Here are a few areas OSHA is brainstorming: overall VPP process and flow; corporate/long-term participant involvement; and Special Government Employee activities.


New EU Privacy Legislation Clashes with US Discovery Obligations: Forewarning for companies with employees on both sides of the Atlantic

This post was written by Bert Theeuwes and Saskia Lemeire and originally posted on Kelley Drye’s Labor Days Blog.

The European Union is launching new privacy and data protection rules in May 2018. This new regulatory framework, known as the General Data Protection Regulation (GDPR) is known to have a substantial extra territorial reach (also likely to apply to every US organization processing personal information of even a single individual in the EU) and boast sanctions of up to € 20 million in fines or, in the case of an undertaking, 4 percent of the annual worldwide turnover.

The GDPR prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate, as is the case for the US. This may create a problem when an employer needs to comply with US discovery obligations.

It is Article 48 of the GDPR which explicitly states that a judgment by a non-EU court or administrative authority is not a valid basis for transferring data. Such orders or judgments will only be recognized if based on an international agreement, convention or treaty between the third country and the EU or member state, such as e.g. mutual legal assistance treaties or the Hague Convention.

After May 2018, disclosures to opponents in response to U.S. civil discovery requests involving data protected under GDPR will either need to rely on an appropriate international agreement or find other acceptable bases in the GDPR for transferring data out of the EU.

Preparation and coordination of all data transfers will be key in reconciling US discovery obligations and EU privacy legislation. The stakes, both on the US and EU side, have never been higher. The Kelley Drye Labor and Employment team stand ready to assist clients prepare for and navigate this complex new process.

EU team: Bert Theeuwes, Saskia Lemeire
US team: Barbara Hoey, Mark Konkel

Is Misogyny Protected Activity?

This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.

Putting aside the fact that Damore’s views were perpetuating stereotypes and that any dialogue with a woman who has risen to a leadership role or managed large projects at work, while also managing a home and family will tell him – a woman’s ability to multi-task, handle stress, and desire for success knows no bounds. However, the immediate question that Google’s senior management had to confront was how to react to this memo. Many employees, male and female, were greatly offended by the memo and felt that it did not accurately reflect the opinions and culture of most people at the company. More fundamentally, many felt that this memo was openly hostile to, and advanced stereotypical views of, women at Google. It also perpetuated the myths and challenges that tech companies like Google face, as they work on bringing more women into senior positions. Moreover, as many who follow this area know, the Department of Labor is currently suing Google for salary discrimination, and there have been rumors of class actions looming against companies in this industry. See Anita Hill, Class Actions Could Fight Discrimination in Tech, THE NEW YORK TIMES (Aug. 8, 2017). Given this backdrop, the company needed a strong response.

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OSHA is Pushing Eight Months Without an Administrator: How Long Can You Survive Without Your Head?

The Occupational Safety and Health Administration (“OSHA”) remains Administrator-less seven months into President Trump’s administration with the recent retirement of the former acting assistant secretary, Dorothy Dougherty, and the absence of a nomination from the White House. Despite the power vacuum, OSHA has been forced to remain active on regulations and standards teed up by the outgoing administration and targeted for revision or rescission by opponents of the prior administration’s actions.  These actions include changing the scope of the beryllium standard, delaying the effective date of the injury and illness rule, and signing off on a Congressional vote overturning the Volks rule (which would have rendered meaningless the statute of limitations for recordkeeping violations).

While we are not surprised that even a rudderless OSHA is managing to tick off a few of the Trump Administration’s key agenda items, what about the rest of the stuff OSHA does?    What do the majority of the 2000+ OSHA employees do under a new President and after seven months without a boss?   According to Mark Konkel (our labor law expert in NY and all around good dude), most OSHA employees are probably still working on what they have always been working on.   “ . . .day to day, a giant administrative bureaucracy with thousands of employee is running—meaning that policy momentum will guide what they do in the absence of new top-down direction under the Trump administration.”  He also notes that “this may have the effect of extending Obama-era policy direction, because there’s nothing new to interrupt the old direction.”  Mark is as wise as he is handsome – and that’s why we hate him…

So what is with the delay in naming a new OSHA Administrator?   Maybe nothing.   President Barack Obama did not appoint an OSHA Administrator (Dr. David Michaels) until late July of his first term and President George W. Bush waited mid-September of his first term to appoint Edwin Foulke.  Given the general slow pace of nominations on other agencies and the fact that President Trump was compelled to “do over” his nomination for Secretary of Labor, we wouldn’t be too surprised to see this nomination delayed well into the fall.  

Guesses on who it will be?   Our NSFW rumor mills have heard mention of Tom Galassi (head of the agency’s enforcement directorate), Scott Mugno (vice president of safety, sustainability and vehicle maintenance at FedEx Ground), and James Thornton (safety director at shipbuilder Huntington Ingalls Industries in Norfolk, VA).  Any guesses from our tens of devoted NSFW readers?   (Hi Mom!)  


The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act

This post was written by David Van Pelt and originally posted on Kelley Drye’s Labor Day Blogs.

Under the federal WARN Act, companies that maintain a facility with 100 or more full-time employees are required to provide no less than 60 days’ written notice to employees affected by a mass layoff or facility closure. Many employers are faced with the difficult task of determining whether or when these notices should be distributed.

The WARN Act contains several affirmative defenses that are designed to address this conundrum, and provide employers with a complete defense to liability under the statute when a company’s exigent condition forces an immediate cessation of operations. These exceptions to the WARN notice obligations are identified as the ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ exceptions. Employers faced with possible pending layoffs or facility closures should consider both of them independently.

Read more in the Employment Law Strategist article, The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act, written by David Van Pelt (access may require subscription).

Banning Visible Political, Philosophical or Religious Signs in the European Workplace – Does Your Policy Need Updating?

This post was written by Bert Theeuwes, Mark A. Konkel and Saskia Lemeire and originally posted on Kelley Drye’s Labor Day Blogs.

The highest court of the European Union recently issued two judgments allowing employers to ban the visible wearing of political, philosophical or religious signs at the workplace (Judgment of the Court of Justice of the European Union in case C-157/15 and in case C-188/15). If you have a policy in place for your EU-based employees that touches upon the wearing of political, philosophical or religious signs, you should verify whether that policy is in line with this latest interpretation of the principle of equal treatment.

On 14 March 2017, the European Court of Justice ruled that “an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”. The two cases concerned the dismissal of two women for wearing the Islamic headscarf, which was prohibited by the employer. The Court decided that wearing the Islamic headscarf could be banned without constituting discrimination, but only as part of a general policy barring all religious and political symbols. Furthermore, that policy must have a legitimate aim such as, for example, pursuing neutrality in the relation with customers. Lastly, such a policy must be achieved through appropriate and necessary means.

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Department of Labor Chooses Chief of Staff

Labor Secretary Acosta has dubbed Wayne Palmer his new Chief of Staff. Following Acosta, Palmer is the first major political hire at the Department of Labor (“DOL”). Palmer’s considerable experience in Washington includes holding a senior position at the Center for Presidential Transition and his tenure as Chief of Staff to former Senator Rick Santorum. More recently, Palmer served as a temporary political official in the Trump administration. As Chief of Staff, Palmer will have significant influence within the DOL. His ability to oversee managerial operations, and facilitate the Secretary’s stakeholder outreach will allow him the opportunity to push policy and enable the DOL agenda.