• 10/12/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Contractor After Employee’s Electrocution
  • 10/11/2018 – Region 6 OSHA News Release – U.S. Department of Labor and Jordan Foster Construction Partner To Enhance Workplace Safety and Health at El Paso Construction Project
  • 10/10/2018 – OSHA National News Release – U.S. Department of Labor Announces Actions to Assist Americans Impacted by Hurricane Michael
  • 10/05/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites New Jersey Pet Food Manufacturer for Failure to Correct Prior Workplace Safety, Health Hazards
  • 10/05/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Craft Brewers Establish Alliance to Promote Workplace Safety in Ohio Breweries
  • 10/05/2018 – Region 5 OSHA News Release – Wisconsin Manufacturer Settles Whistleblower Allegations
  • 10/04/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service For Repeat Safety Violations at Austin Facility
  • 10/03/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites New Jersey Lumber Company For Exposing Employees to Health Hazards
  • 10/02/2018 – OSHA Trade Release – U.S. Department of Labor Updates National Emphasis Program on Trenching and Excavation Safety
  • 10/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Art Supply Manufacturer For Exposing Employees to Amputation Hazards
  • 10/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Wisconsin Refinery for Failing to Control Hazardous Chemicals
  • 10/01/2018 – OSHA National News Release – U.S. Labor Department Awards Workplace Safety and Health Training Grants to Assist in Educating Workers, Job Creators
  • 10/01/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction of Georgia STEM School
  • 10/01/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Manufacturer For Safety Violations After Employee Injury
  • 10/01/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Plastics Manufacturer For Exposing Workers to Machine Hazards

 

  • 09/27/2018 – OSHA National News Release – U.S. Department of Labor Provides Compliance Assistance Resources to Keep Workers Safe from Trenching-Related Hazards
  • 09/27/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Green Bay Meat Packer After Employee Injury
  • 09/27/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Railcar Maintenance Company for Repeatedly Exposing Employees to Fire and Explosion Hazards
  • 09/25/2018 – OSHA News Release – Joint Regional – U.S. Department of Labor Launches Regional Emphasis Program Focused on Reducing Employee Exposure to Ammonium
  • 09/25/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Metal Forging Company, Proposes $225,046 in Penalties
  • 09/20/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Country Club for Safety Hazards
  • 09/19/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Connecticut Employer For Exposing Employees to Fall Hazards at Construction Jobsite
  • 09/19/2018 – Region 4 OSHA News Release – U.S. Department of Labor Urges Workers and the Public to be Vigilant And Mindful of Hazards Following Hurricane Florence
  • 09/18/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Peanut Processing Facility, Places Company in OSHA’s Severe Violator Enforcement Program
  • 09/18/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Five Contractors for Safety Violations Following Florida Pedestrian Bridge Collapse
  • 09/17/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Companies After Fatal Fall At Communication Tower Worksite in Mississippi

 

This article was originally written by Barbara E. Hoey and Alyssa M. Smilowitz, and originally posted on Kelley Drye’s Labor Days Blog.

Recent filings show healthcare employers remain susceptible to religious discrimination claims.

In August, the EEOC filed suit against Hackensack Meridian Health (“Hackensack”), a New Jersey healthcare network, alleging an employee was harassed due to religion. According to the complaint, Hackensack hired Jojy Cheriyan in August 2015 to perform clinical informatics work. The EEOC alleges that his supervisor discovered that Mr. Cheriyan was Catholic, which sparked a strong negative reaction. According to the complaint, the supervisor “exhibited disapproval” when he observed a crucifix in Mr. Cheriyan’s office, and began treating Mr. Cheriyan in a hostile and verbally abusive manner, which included screaming at Mr. Cheriyan during meetings, belittling him and his work, tearing his work up and throwing objects at him.

The EEOC claims that Hackensack was aware of the harassment – due to Mr. Cheriyan’s complaints to management – yet failed to take reasonable corrective actions to put an end to the treatment.

At this time, the litigation is in its infancy with only the August complaint on the docket and an answer due in a few weeks. In its press release about the case, the EEOC’s New York District Director stated, “[p]eople of all religions are entitled to go to work and do their jobs without fear of harassment.”

What to Take Away From This Case? Two Lessons

1.  What types of religious items (putting aside clothing) may an employee exhibit in the workplace and when can a manager limit such? Are there restrictions?

The EEOC Compliance Manual on Religious Discrimination provides some insight but does not provide a clear answer. To some degree, the EEOC seems to say that the answer depends on whether the display is in a public place.

2.  How Should a Supervisor Handle a “Religious” Display?

It is unknown if the plaintiff’s manager in the healthcare case actually was hostile or abusive toward the plaintiff. It is likely, however, that any conversation about the crucifix became tense, and may have brought about the charge.

A supervisor should not discuss religion with employees. Period. If an issue arises regarding religious observance, a supervisor should talk to human resources and get guidance about how to speak to the employee.

Clearly, any exchange that is perceived as hostile to religion could spur a discrimination claim.

The EEOC Compliance Manual on Religious Discrimination provides the following example:

  • “Susan and Roger are members of the same church and are both employed at XYZ Corporation. Susan works as an architect in a private office on an upper floor, where she occasionally interacts with co-workers, but not with clients. Roger is a security guard stationed at a desk in the front lobby of the XYZ building through which all employees, clients, and other visitors must enter.”
  • “At a recent service at Susan and Roger’s church, the minister distributed posters with the message ‘Jesus Saves!’ and encouraged parishioners to display the posters at their workplaces in order to ‘spread the word.’ Susan and Roger each display the poster on the wall above their respective work stations. XYZ orders both to remove the poster despite the fact that both explained that they felt a religious obligation to display it, and despite the fact that there have been no complaints from co-workers or clients. Susan and Roger file charges alleging denial of religious accommodation.”

According to the EEOC guidance:

  • For Susan, XYZ Corporation “will probably be unable to show that allowing Susan to display a religious message in her personal workspace posed an undue hardship, because there was no evidence of any disruption to the business or the workplace which resulted.”
  • But for Roger, “because Roger sits at the lobby desk and the poster is the first thing that visitors see upon entering the building, it would appear to represent XYZ’s views and would therefore likely be shown to pose an undue hardship.”

In addition, employers must not forget that an employer’s rights under the First Amendment may also come into play in such situations. To make things more complicated, government employers have their own unique considerations.

As religious holidays occur throughout the fall and beyond, employers should carefully consider any display of religion in the workplace and ensure both managers and employees are educated accordingly.

  • 09/14/2018 – Region 5 OSHA News Release – U.S. Department of Labor Enters Partnership to Promote Safety During Illinois Courthouse Construction Project
  • 09/13/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Wood Pallet Manufacturer After Employee Amputation
  • 09/13/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Sawmill for Safety Violations
  • 09/10/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Woodworking Company For Exposing Employees to Fire and Explosion Hazards
  • 09/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction Project in Georgia
  • 09/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Urges Workers and the Public to be Vigilant And Mindful of Hazards During Tropical Storm Gordon Cleanup
  • 09/05/2018 – OSHA Trade Release – U.S. Department of Labor to Hold Meeting to Solicit Public Input On Whistleblower Issues in the Finance Industry

 

This article was originally posted on Kelley Drye’s Labor Days Blog.

As employers look for creative ways to help employees manage their student loan debt, the IRS recently ruled that employer nonelective contributions to a 401(k) plan for employees who make student loan repayments would not violate the Internal Revenue Code’s contingent benefit rule. That rule prohibits an employer from making any benefit (other than matching contributions) contingent, directly or indirectly, on an employee’s making, or not making, elective deferrals under the 401(k) plan.

The guidance came in the form of a Private Letter Ruling (“PLR”), which may only be relied on by the employer who requested the ruling. Nonetheless, the PLR is instructive for other employers wishing to provide similar tax-favored benefits for employees who may not otherwise be in a position to contribute to their retirement savings.

In the PLR, the employer’s 401(k) plan provided a 5% match on eligible compensation for each pay period in which the employee made an elective deferral of at least 2% of eligible compensation. The employer proposed amending the plan to allow employees to opt out of the 5% match and, in lieu thereof, receive nonelective contributions to the plan equal to 5% of their eligible compensation for each pay period in which they make student loan repayments of at least 2% of their eligible compensation. Employees participating in the student loan repayment program would be eligible for a true-up matching contribution for any pay period in which they made elective deferrals to the plan but failed to make the 2% student loan repayment necessary to receive the nonelective contribution for such pay period. These nonelective and true-up matching contributions would be subject to the same vesting schedule as regular matching contributions and would be deposited in an employee’s account as soon as practicable after the end of the plan year if he/she were employed on the last day of the play year (except in the case of death or disability). The nonelective contributions would be subject to all plan qualification requirements and would not be treated as a match for 401(m) discrimination testing purposes (but any true-up matching contribution would be). All employees eligible to participate in the 401(k) plan would be eligible to participate in the program and could opt out prospectively at any time and resume eligibility for regular matching contributions. The employer represented that it had no intention of extending student loans to any employee eligible for the program.

To read the full advisory on the Kelley Drye website, click here.

This article was originally posted on Kelley Drye’s Labor Days Blog.

IRC §162(m) limits a publicly held corporation’s ability to take a tax deduction for compensation paid to covered employees in excess of $1 million. As mentioned in our January 2018 Client Advisory, the Tax Cuts and Jobs Act (“Act”) repealed the exception to §162(m) for qualified performance-based compensation and expanded the applicability of §162(m) by broadening the definitions of covered employee and publicly held corporation. These changes generally apply to tax years beginning on or after January 1, 2018, but certain payments are exempt under a transition rule. The IRS recently issued Notice 2018-68 (“Notice”) to provide guidance on the identification of covered employees and the operation of the transition rule. This Client Advisory highlights some of the guidance provided.

Covered Executives
For purposes of determining covered employees for any tax year, the Act provides that any executive (i) who is the principal executive officer (“PEO”) or principal financial officer (“PFO”) of the publicly held corporation at any time during the taxable year, or an individual acting as such, or (ii) whose total compensation for the taxable year is required to be reported to shareholders under SEC rules by reason of such executive being among the three highest compensated officers for the taxable year (other than the PEO or PFO, or an individual acting in such capacity), is a covered executive. Moreover, any individual who was a covered employee for tax years beginning on or after January 1, 2017, remains a covered employee for subsequent tax years.

The Notice provides that an executive does not have to serve as an executive officer at the end of the taxable year to be a covered employee, and that an executive whose compensation is not required to be disclosed under SEC rules may nevertheless be a covered employee – e.g., where an employer delists its securities and does not have to file a proxy statement for the year in question or where an employer is subject to the scaled disclosure rules for smaller reporting companies or emerging growth companies. The Notice also provides that, for tax years beginning before January 1, 2018, covered employees are determined under pre-Act provisions.

To read the full advisory on the Kelley Drye website, click here.

  • 08/29/2018 – Region 4 OSHA News Release – Florida Roofing Company Faces Penalties For Exposing Employees to Fall and Other Safety Hazards
  • 08/28/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Thorpe Plant Services and Steel Dust Recycling After Employee Hospitalized For Fall
  • 08/24/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Two Colorado Construction Companies For Safety and Health Hazards after Worker’s Fatal Fall
  • 08/22/2018 – OSHA Trade Release – U.S. Department of Labor Posts New Frequently Asked Questions and Videos on OSHA Standard for Controlling Silica in Construction
  • 08/21/2018 – Region 3 OSHA News Release – U.S. Department of Labor and Texas-Based Builder Partner to Promote Workplace Safety During Northwest D.C. Construction Project
  • 08/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Worker Safety During Construction of Georgia Development Project
  • 08/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Tool Manufacturer After Employee Suffers Amputation

 

  • 08/14/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Construction Company After Employee Suffers Serious Laceration
  • 08/09/2018 – Region 5 OSHA News Release – U.S. Department of Labor Forms Safety Partnership with Builder and Unions on Potawatomi Hotel Expansion Project
  • 08/08/2018 – OSHA Trade Release – U.S. Department of Labor Extends Some Compliance Dates For General Industry Beryllium Standard
  • 08/07/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Alabama Auto Dealership Settle Safety Citations and Penalties Following Fatal Fire
  • 08/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Tennessee Contractor After Two Employees Burned at Nuclear Power Plant
  • 08/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Construction Company After Fatal Trenching Incident
  • 08/06/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites El Paso Construction Company For Trenching and Excavation Safety Hazards
  • 08/03/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Illinois Manufacturer For Health and Safety Violations
  • 08/03/2018 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Dollar Tree Store For Exposing Employees to Safety Hazards
  • 08/02/2018 – OSHA National News Release – U.S. Department of Labor Announces $10.5 Million in Funding Opportunities for Susan Harwood Training Grants to Support Worker Safety and Health
  • 08/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Manufacturer For Exposing Employees to Excessive Noise and Other Hazards
  • 08/02/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Recycling Company for Safety Violations
  • 08/02/2018 – Region 10 OSHA News Release – U.S. Department of Labor Cites Idaho Lumber Company For Exposing Employees to Safety Hazards
  • 08/01/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Paving Company After Employee Sustains Fatal Injuries

 

This article was written by Kate Visosky and Christina Nordsten and originally posted on Kelley Drye’s Labor Days Blog.

In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards.

The de minimis rule has been applied by the federal courts for more than 70 years. The doctrine excuses the payment of wages for small amounts of otherwise compensable time upon a showing that the time is administratively difficult to record. For example, courts have held that time spent by employees booting up their computers and shutting down and clocking out are de minimis and not compensable. See e.g. Chambers v. Sears Roebuck and Co., 428 Fed. Appx. 400 (5th Cir. 2011).

In Troester, the California Supreme Court stepped away from the de minimis approach holding that an “employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.” Troester, (2018) 5 Cal. 5th 829, 847. The plaintiff in Troester “had various duties related to closing the store after he clocked out” and that “on a daily basis, these closing tasks generally took [plaintiff] about 4-10 minutes.” Id. at *21. The Court said this time must be compensated.

Notably, while the Court declined to apply the de minimis standard under the facts of the case, it did not reject the doctrine completely. Indeed, it noted there could be instances involving tasks “so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”  Troester, 5 Cal. 5th at 848. Thus, the key notion to take away from this case is that off-the-clock work considered significant and regular must be compensated, while insignificant and irregular time could still be considered de minimis. As to the application of the rule, Justice Leondra Kruger wrote a separate concurring opinion offering some concrete examples for when the de minimis rule could apply:

  • Time spent turning on a computer and logging in to an application in order to start a shift and the process takes longer because of a rare and unpredictable software glitch.
  • Time spent reviewing schedule changes notified by e-mail or text message during off hours.
  • Time spent waiting at work for transportation at the end of the day during which time a customer may ask the employee a question not realizing the employee is off duty.

Justice Kruger noted that requiring an employer to accurately record this type of time would be impractical and unreasonable.

What does this ruling mean for California employers?

Although the Troester decision limits the de minimis standard in California, it does not fully reject it. Realistically there will be situations where some work will be impossible to record. The Court made note of this. Therefore, while entities doing business in California can be confident that highly unusual and irregular time spent off-the-clock may not be found compensable, the Troester decision may still have an impact on their business. This is especially true for companies in the service industry such as retailers and restaurants who employ a large number of the hourly workers in our state. These companies may want to conduct a review of their policies, practices, and procedures that impact their employees’ timekeeping. Below are a few examples of what employers in California can do in light of Troester.

  • Review pre-shift and post-shift practices to ensure that there is no regularly occurring off-the-clock work. For example, “post-shift” practices that include locking up the business should be done on the clock.
  • Keep in mind that technological advances can streamline timekeeping practices. For example, many companies employ smartphone applications that can measure time worked to the split of a second.
  • Update handbooks and written policies to ensure compliance. For example, policies should strictly prohibit off-the-clock work and provide employees with a process for submitting claims of off-the-clock work.
  • Train employees, including supervisors, and managers, in their updated policies and procedures.

Although the Troester decision has limited the application of the de minimis doctrine in California, it remains to be seen how it will be applied to other cases moving forward. In the meantime, employers can limit their exposure by proactively reviewing and revising their policies and procedures in light of the decision.

This article was originally published in Lawyer Monthly on August 31, 2018.

This post was written by Matthew C. Luzadder and Janine Fletcher and originally posted on Kelley Drye’s Labor Days Blog.

Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?

Continue Reading Altered State: Navigating the Haze Around Medical Marijuana in the Workplace