OSHA News Releases from May 1 through May 15

  • 05/11/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New York Cosmetics Manufacturer For Safety and Health Hazards Following November 2017 Fire
  • 05/11/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Contractor and Staffing Agency Following Fatal Trench Collapse at Alabama Work Site
  • 05/10/2018 – OSHA Trade Release – OSHA Announces Delayed Enforcement of Certain Provisions of the Beryllium Standard
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Philadelphia Contractor For Multiple Safety Violations; Proposes $222,152 in Penalties
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Inspection Cites Pennsylvania Box Manufacturer For Failure to Correct Prior Safety Hazards
  • 05/10/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes Pennsylvania Brick Manufacturer For Excellence in Workplace Safety
  • 05/10/2018 – Region 7 OSHA News Release – U.S. Department of Labor and PARIC Corp. Partner to Promote Workplace Safety and Health During Construction of St. Louis’ Ballpark Village Projects
  • 05/09/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Two Colorado Companies For Workplace Safety Failures in Fatal Pipeline Fire
  • 05/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Manufacturer For 36 Safety And Health Violations
  • 05/04/2018 – OSHA Trade Release – OSHA Issues Direct Final Rule Revising Beryllium Standard For General Industry
  • 05/04/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Framing Contractor For Exposing Employees to Dangerous Falls
  • 05/03/2018 – OSHA National News Release – 5th Annual National Safety Stand-Down to Prevent Falls Begins May 7
  • 05/03/2018 – OSHA Trade Release – OSHA Schedules Meeting to Request Comments on Whistleblower Issues in the Railroad and Trucking Industries
  • 05/02/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Health Facility for Exposing Employees to Workplace Violence

OSHA News Releases from April 15 through April 31

  • 04/30/2018 – OSHA Trade Release – U.S. Department of Labor Fixes Error Dating to 2016 Implementation of “Improve Tracking of Workplace Injuries and Illnesses” Regulation
  • 04/27/2018 – OSHA Trade Release – Statement by Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt on Workers’ Memorial Day 2018
  • 04/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Association of Energy Service Companies Renew Alliance to Keep Texas Oil and Gas Employees Safe
  • 04/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Florida Roofing Contractor Settle Lawsuit on Whistleblower Allegations
  • 04/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor, Georgia Tech, and Georgia Department Of Public Health Form Alliance to Reduce Lead Exposure
  • 04/23/2018 – Region 5 OSHA News Release – U.S. Department of Labor Proposes Penalties for Farm Supply Company For Operating Damaged Forklift at its Ohio Facility
  • 04/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Company, Proposes $261,454 in Penalties for Workplace Safety Hazards
  • 04/20/2018 – Region 9 OSHA News Release – U.S. Department of Labor Orders California Company to Pay $110,000 To Manager Who Reported Concerns Regarding E-Cigarette Ingredients
  • 04/17/2018 – OSHA Trade Release – OSHA Flier Offers Steps to Keep Tractor Trailer Drivers Safe at Destination
  • 04/17/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Company For Exposing Employees to Trenching Hazards
  • 04/17/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Contractor for Exposing Workers to Trenching, Other Safety Hazards on North Dakota Municipal Project

 

What to Expect from the New Jersey Paid Sick Leave Bill

This post was written by Jennifer Fischer and Mark A. Konkel and originally posted on Kelley Drye’s Labor Days Blog.

On March 26th, the New Jersey Assembly passed legislation that requires employers in New Jersey to provide earned sick leave to their employees. The legislation was then passed by the New Jersey Senate on April 12th, and now heads to Governor Phil Murphy’s desk for signature. He tweeted out that he intends to sign the bill into law on May 2nd. He believes that enacting the law will “support working families and strengthen our economy.”

What is the New Bill?

The proposed legislation allows New Jersey workers to accrue paid sick leave for every 30 hours worked. The number of hours of leave that can be accrued per year is capped at 72 hours. There is no minimum amount of time an employee must be employed before they are able to start accruing paid sick leave. Employers are required to give employees the same pay rate and benefits for earned sick leave that the employees would regularly receive for working hours. Employers may offer to pay workers for their unused earned sick leave in the final month of the year. The sick leave can be used for physical and mental illness, to care for an ill or injured family member, or to attend a school-related event for a child. Employers are prohibited from retaliating or discriminating against an employee for using their paid sick leave. Employers also must not discipline, discharge, demote, suspend, or take any other adverse action against employees who are using their sick leave.

Why was this Bill Passed?

The intent of the new legislation is to ensure an employee does not have to choose between a paycheck and going to work sick. Governor Murphy tweeted “No one should lose a day’s pay due to sickness or because a loved one has fallen ill.” Continue Reading

“Times Up” for New York Employers – Governor Cuomo Signs Historic Anti-Harassment Legislation

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

On April 12, 2018, New York Governor Andrew Cuomo signed into law the New York State budget bill, which makes some big changes in the obligations of New York employers relative to sexual harassment.

The new law has both immediate and rolling implications for all New York employers.

EFFECTIVE IMMEDIATELY (I.E., RIGHT NOW)

The New York State Human Rights law now extends protections to certain non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract.

This means that employers may now be held liable for the sexual harassment of non-employees if the employer, its agents, or supervisors knew or should have known that the non-employee was subjected to sexual harassment and the employer failed to take appropriate corrective action.

This is a significant change in the law and employers should make sure that Human Resources and managers are aware of it.


ROLLING PROVISIONS

July 11, 2018: No NDA’s and No Mandatory Arbitration – New York employers will be prohibited from using nondisclosure clauses in harassment settlements, unless the complainant prefers that the settlement be confidential. Like the OWBPA, the agreements must also give the complainant 21 days to consider signing, and 7 days to revoke.

New York employers may not require mandatory arbitration of claims of workplace sexual harassment, to the extent this is “not inconsistent with federal law.”

October 9, 2018: Mandatory Training Provision Roll Out – Employers must distribute written anti-harassment policies in the workplace; and Employers must conduct annual anti-harassment training for all employees, based on models to be developed and published by the New York State Department of Labor and the New York State Division of Human Rights.

The model training must include: (1) an explanation of sexual harassment; (2) examples of conduct that would constitute unlawful sexual harassment; (3) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and (4) information concerning employees’ rights of redress and all available forums for adjudicating complaints. The training must also include information addressing the conduct and additional responsibilities for supervisory personnel.

January 1, 2019: Government Contractor Affirmation – Employers who wish to bid on certain state contracts will be required to affirm that the employer has implemented a written policy addressing sexual harassment in the workplace and that it provides annual sexual harassment prevention training to all of its employees. Continue Reading

OSHA News Releases from April 1 through April 15

  • 04/13/2018 – Region 5 OSHA News Release – U.S. Department of Labor Finds Ohio Contractor Continues To Expose Roofers to Falls and Other Safety Hazards
  • 04/12/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Plastics Manufacturer For Workplace Safety Failures, Proposes Penalties of $435,679
  • 04/11/2018 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Landscape Industry Associations and Employers to Sponsor Southeast Safety Stand-Down Events Focusing on Preventing Heat-Related Illnesses and Landscaping Injuries
  • 04/09/2018 – Region 1 OSHA News Release – Lynnway Auto Auction to Correct Hazards, Implement Safety Measures, And Pay Penalties in U.S. Department of Labor Settlement
  • 04/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Seeks to Prevent Georgia Roadway Worksite Injuries Through Safety Stand-Down Events
  • 04/05/2018 – Region 7 OSHA News Release – Grain-Handling Industry and Safety Professionals Announce ‘Stand-Up for Grain Engulfment Prevention Week,’ April 9-13
  • 04/03/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Omaha Company for Exposing Workers To Trenching Hazards, Proposes $38,061 in Penalties

 

EEOC’s New Guidance Takes Us Back to the Basics

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

Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.

But, have they really worked?

In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.

Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.

These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.

So what does an effective harassment program look like and how is it implemented?

The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.

Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource. Continue Reading

OSHA News Releases from March 16 through March 31

  • 03/28/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders Reinstatement of Massachusetts Pilot Who Lost Job after Reporting a Safety Concern
  • 03/27/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor for Fall Hazards at New Hampshire Work Site
  • 03/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Communication Tower Contractor Following Three Fatalities at Miami Work Site
  • 03/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor For Exposing Employees to Fall Hazards, Proposes Penalties
  • 03/16/2018 – Region 2 OSHA News Release – U.S. Department of Labor Proposes Penalties for Waterloo, New York, Dairy Producer for Failing to Correct Hazards
  • 03/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Company After Employee Suffers Fatal Heat-Related Injury
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Auto Parts Manufacturer Reach Settlement Agreement, Including $1 Million Penalty
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Kraft Heinz Food After Employee Injured by Machine, Proposes Penalties
  • 03/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Egg Processing Facility After Employee Fatally Injured
  • 03/15/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders JetBlue to Reinstate and Pay Back Wages and Damages to Flight Attendant
  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility

OSHA News Releases from March 1 through March 15

  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility
  • 03/14/2018 – Region 6 OSHA News Release – OSHA Partners with McCarthy Building Companies To Protect Employees at Christus Spohn Hospital Project
  • 03/14/2018 – Region 8 OSHA News Release – U.S. Department of Labor Proposes Penalties for Colorado Concrete Company After Employee Injured in Trench Collapse
  • 03/12/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Manufacturer For Lacking Safety Procedures After Employee Suffers Amputation
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In Delaware To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Western Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Machine Manufacturer For Exposing Employees to Chemical Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Greater Philadelphia To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In D.C. To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Central Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Northwest Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In West Virginia To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Central Eastern Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Northeast Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Billings Company For Failing to Provide Safe Workplace for Employees
  • 03/07/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Jacksonville Utilities Contractor For Willful and Serious Safety Violations after Trench Cave-in
  • 03/05/2018 – Region 1 OSHA News Release – U.S. Department of Labor, Massachusetts Division of Occupational Safety, and Associated Subcontractors of Massachusetts Partner to Promote Workplace Safety
  • 03/02/2018 – OSHA Trade Release – OSHA Will Enforce Beryllium Standard Starting in May

 

February 2018 OSHA News Releases

  • 02/27/2018 – Region 3 OSHA News Release – U.S. Department of Labor’s Occupational Safety and Health Administration And The Clarion University Small Business Development Center Join in Effort to Improve Workplace Safety and Health
  • 02/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Patio and Pool Enclosure Installer Following Employee Fatality
  • 02/22/2018 – OSHA Trade Release – OSHA Renews Alliance with Performing Arts Organizations to Protect Safety and Health of Workers in Entertainment Industry
  • 02/21/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Illinois Roofing Contractor For Exposing Workers to Falls, Proposes $281,286 in Penalties
  • 02/20/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Plastics Manufacturer Following Employee Fatality
  • 02/16/2018 – OSHA Trade Release – OSHA Renews Alliance with the International Window Cleaning Association to Protect the Safety of Industry Workers
  • 02/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer for Safety Hazards, Proposes Penalties Totaling $74,833
  • 02/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Environmental Services Company Resolve Lawsuit on Whistleblower Allegations
  • 02/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Buckeye STEPS Renew Alliance to Improve Workplace Safety in Ohio Oil and Gas Industry
  • 02/08/2018 – Region 2 OSHA News Release – U.S. Department of Labor Reaches Settlement Agreement Resulting in Paperboard Company Paying $175,000 in Penalties
  • 02/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer For Serious Safety Violations
  • 02/07/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Manufacturer for Safety Violations, Proposes $256,088 in Penalties
  • 02/05/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Southern Illinois Joint Apprenticeship Program Partner to Protect Construction Employees
  • 02/05/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Colorado Nursing Home For Workplace Violence Hazards
  • 02/02/2018 – OSHA Trade Release – OSHA and the Board of Certified Safety Professionals Form Alliance to Provide Safety and Health Information to Certification Holders

 

Add One Line in Your Employment Contracts and Policies to Reduce Exposure to Misclassification Liability

This post was written by  Michael D. Yim and originally posted on Kelley Drye’s Labor Days Blog.

Employers, even with the most robust and well-intentioned human resources departments, can still face the dreaded misclassification lawsuit for their salaried employers. In many cases, exempt employees are properly classified as executive or administrative employees. A misclassification lawsuit, however, is difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial. On top of that, plaintiffs generally bring such claims as class or collective actions – making litigation costly as well. Further compounding the problem, settlement of wage and hour misclassification cases is the preferred mode of resolution – but only after a range of damages can be made with some degree of certainty.

What if I told you that if you included one simple sentence in your employment contracts, handbooks and policies for salaried employees, it would likely reduce your exposure by approximately two-thirds in FLSA cases? For starters, it would make it easier to settle at the right amount by avoiding unnecessarily inflated ceiling for damage calculations by plaintiffs. So what are the “magic words” in this simple sentence?

For exempt employees, your salary is intended to pay for all hours worked during each pay period, regardless of your scheduled or tracked hours.

An employer’s first response is: well, isn’t that assumed for salaried employees since common sense dictates that a salaried employee means that an employee is not paid on a time basis and would be paid for all hours worked? No. This isn’t the case as more courts have presumed that, absent an express understanding, an employee’s salary only applies to the first 40 hours of a workweek as a default. This is because U.S. Department of Labor regulations are vague on how to calculate damages for misclassification cases, and courts have growingly interpreted guidance on what is called the Fluctuating Workweek (“FWW”) method of calculation for non-exempt employees – that is, counting a weekly salary to count as pay for all hours worked at a regular rate, even “overtime.”

Wait, what? In short, many courts would treat any overtime hours as unpaid as a default for calculations. Damages, therefore, would be 1.5 times the regular rate based on 40 hours (salary divided by 40 hours) for the overtime hours. See Ramos v. Telgian Corp., 176 F. Supp. 3d 181, 193, 2016 U.S. Dist. LEXIS 44321 (E.D.N.Y. 2016) (explaining that “[i]n the case of salaried, rather than hourly, employees, … the FLSA … ‘presum[es] that [] a weekly salary covers only the first forty hours, unless the parties intend and understand the weekly salary to include overtime hours at the premium rate’”).

Continue Reading

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