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’”).

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The NLRB Joins the #MeToo Movement

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

As we previously posted, gender discrimination issues have been a hot topic at the National Labor Relations Board (“NLRB”). Now, it seems the NLRB is even more on board the #metoo movement – but with a twist, sexual harassment by unions. On February 20, 2018, the NLRB in ILA Local 28 (Ceres Gulf, Inc.) (NLRB 2018) issued a very concise, but biting decision that vacated an administrative trial court’s decision dismissing a breach of duty of fair representation case against a union for discriminating and sexually harassing a female union member. The NLRB’s rationale – the ALJ’s “credibility determinations about the [female employee’s] claim were based on sex stereotypes and demonstrated bias.” Wow. Mic drop.

In Ceres Gulf, the union operated an exclusive hiring hall which referred employees for work and training (for certification for certain jobs) based on seniority roster. The employee alleged that she made multiple requests for training and referrals. But, instead of granting her request, the union officer in charge of administering the seniority roster subjected the employee to groping and sexual propositions on at least 10 occasions. The ALJ rejected the employee’s version of the events because – wait for it:

It is simply implausible that [the employee who] appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed [the union officer] to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions … would have allowed [the union officer] to repeatedly violate her. It is also implausible that, if [the union officer] withheld training because she rejected his advances from 2010 to 2015, as she alleges, he would have then enrolled her for training in June 2015 after her rejection. It is also implausible that [the employee], who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about [the union officer] other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs). Continue Reading

Is Misogyny Protected Activity? Part 2

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

Earlier, we blogged about James Damore, an engineer at Google who was terminated for his memo, which openly expressed his belief that women were not “biologically suited” for certain types of positions and criticism of the company’s efforts to diversify its work force.

The engineer challenged his termination by filing a charge with the National Labor Relations Board and launched a media offensive arguing that he was fired for his ‘conservative’ views.

I am pleased to report that the NLRB’s general counsel issued an advice memorandum affirming that Google was indeed acting lawfully when it terminated Mr. Damore. Among the conclusions, the NLRB General Counsel Jayme Sophir found that any employer must be given “particular deference” when it is acting to promote and comply with state and federal employment laws, and to promote diversity in their workplaces.  Thus, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace’, rather than waiting until an actionable hostile workplace has been created before taking action.”

The general counsel also confirmed that the Board has already found that employee conduct, which “significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination” it is not protected.

Using that rationale, the Board concluded that Mr. Damore’s “use of stereotypes bases on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases,“ as such comments “were likely to cause serious dissension and disruption in the workplace.”  Therefore, while “much of” the memorandum may have been protected, his statements about “biological differences  between the sexes were so harmful, discriminatory and disruptive as to be unprotected”.

The Board also noted that Google “carefully tailored” its message to explain Mr. Damore’s termination and to ensure employees were aware of their right to engage in protected speech.

The Takeaway for Employers – This decision confirms that, while it may be fine, there is a line which employees cannot cross when they are “protesting” employer actions with which they disagree. Employees may not engage in speech in the workplace (verbally, in written or electronic form), which is openly discriminatory, or which is likely to cause dissension or disruption in the workplace. This should be empowering to all employers. While employers certainly need to be careful when disciplining or discharging an employee under these circumstances, they do have the right to set some reasonable limits on what type of speech will be tolerated in the workplace

2018 Outlook on Federal Labor Laws

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

While President Donald Trump is not known for a deliberate approach, the long-anticipated shifts in labor law and policy is starting to take shape in an efficient and measured form. The National Labor Relations Board (“NLRB” or the “Board”) closed out 2017 with several key decisions overturning significant pro-unions policies. These decisions came on the heels of newly minted NLRB General Counsel Peter Robb’s “Mandatory Submissions to Advice” Memo (the “Memo”) directing regional offices to defer to the General Counsel on certain hot-button labor enforcement actions – a clear signal that many more Obama-era policies will be challenged and likely reversed.

It took little time for both the NLRB and the NLRB’s GC under the Trump administration to get started – contrasting the difficulties the Obama Administration faced in confirming appointees to the NLRB. But, the Trump administration’s unusual patience in ensuring that its pieces were in place has paid off. Now that the ball is rolling, we can expect to continue to take forceful and efficient action in the administration’s second year.

Let’s take a look at what to expect for 2018:

John Ring – The Next (Likely) NLRB Tiebreaker

Former NRLB Chairman Philip Miscimarra’s term ended on December 16, 2017 with a bang. With a full majority of Republican NLRB appointees, Chairman Miscimarra, on his last days, pushed through profound reversals of various Board policies (discussed below) that haunted the business community. Promptly replacing Miscimarra to hold a majority will be critical to implementing changes to federal labor law and policy. On January 12, 2018, management attorney John Ring was officially nominated to replace Miscimarra. A Senate Committee hearing and vote is expected to occur on February 14, 2018.

Once cleared through Committee, a final Senate vote is likely to follow within weeks to allow Ring to pick up where Miscimarra left off. Based on recent events, many expect that most Obama-era NLRB decisions will be reversed by the end of 2018. Further, the NLRB will be expected to vote on eliminating the “quickie election” rule, which significantly limited the time employers had to defend against union election campaigns. The next Obama appointed Board member’s term will expire in August 2018, positioning a 4-1 Republican-appointed majority before any Senate elections. At that point, the question will be whether the NLRB will look to set bold new policy or be content with reversing Obama-era policies to traditional standards.

Peter Robb’s Enforcement Regime in Full Swing

On December 1, 2017, then-newly confirmed NLRB General Counsel Peter Robb issued the Memo which identified over a dozen recent NLRB decisions as targets for such policy scrutiny, as well as rescinded many other internal enforcement policy memos. Within weeks of issuance, three major Obama-era NLRB decisions were reversed. The Memo initially appeared to be an aspirational wish list of sorts. Now, it can be viewed as the playbook for the imminent unwinding of Obama-era policies.

Robb’s vision, however, does not appear limited to policy challenges on the highest levels. Recent news reports revealed that Robb is also looking to shake-up the grass-roots organizational structure of the NLRB’s enforcement units by adding new layers of management to oversee each regional office. The directors of the regional offices have been viewed (fairly or not) as hostile to business. Regional directors wielded substantial discretionary power at the grassroots level to implement or enforce policy. Under the rumored restructuring, regional directors will lose such discretion to issue complaints and dismiss unfair labor practice charges, or how to manage union representation cases. Those determinations would be made by those closer to the General Counsel’s office than on the local level.

If an actual proposal for restructuring is announced, it will likely require public “notice and comment,” as well as approval from the NLRB members. If approved, this restructuring will certainly expedite implementation of any new labor policies or administrative priorities at the grassroots levels. Even if no proposal is made, Peter Robb’s message to enforcement staff is clear – implementation of Robb’s agenda and new NLRB decisions should be swift. We can expect most, if not all, of the subject areas in the Memo to be addressed and reversed by the end of 2018. If restructuring occurs sooner rather than later, implementing new Board law on the ground level will be instantaneous. Continue Reading

OSHA News Releases from January 15 through January 31

  • 01/30/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Auto Parts Manufacturer for Safety Violations, Proposes Maximum Penalties
  • 01/25/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Gainesville Poultry Processing Company For Amputations and Other Serious Hazards
  • 01/25/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Four Colorado Employers After Fatal Fire and Explosion at Oil and Gas Facility
  • 01/24/2018 – Region 4 OSHA News Release – U.S. Department of Labor Issues Citations and $69,058 in Penalties to Goodyear Tire & Rubber Co. for Endangering Employees
  • 01/24/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Pallet Manufacturer After Employee Injured by Machine
  • 01/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Construction Company For Exposing Employees to Hazards and Proposes $59,864 in Penalties

 

Fiscal Year 2017 EEOC Statistics are Here (and So Is Retaliation!)

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

Last week the EEOC released its annual report breaking down charges received during the fiscal year. In fiscal year 2017, the agency received 84,254 charges and took in $398 million between voluntary resolutions and litigation.

What’s striking is the number of retaliation charges – with 41,097 charges it is an overwhelming 48.8% of total charges filed in 2017. In second place was race with 28,528 charges, followed closely by disability in third place with 26,838. Charges based on sex were not far off with 25,605 charges in the year. The EEOC received 6,696 sexual harassment charges, which is a slight drop from fiscal year 2016’s 6,758 charges.

As employers face more internal complaints of harassment – this retaliation number further highlights the critical importance of a robust and well-honed investigation process. Employers need to handle investigations very carefully, and be mindful that the complainant (and the witnesses) may also be the source of your next retaliation complaint. Investigators and managers must be carefully trained to avoid situations which can lead to complaints or retaliation.

Overall, the EEOC resolved close to 100,000 charges in fiscal year 2017 (99,109), reducing the charge workload to the agency’s lowest inventory in a decade.

New Tax Law Impact on Employee Benefits and Compensation

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

At the end of 2017, President Trump signed into law The Tax Cuts and Jobs Act (the “Act”) that includes significant changes in the employee benefits area, most of which became effective on January 1, 2018. The following is a brief description of some of the notable changes, and we expect additional guidance on many of the Act’s provisions.

Executive Compensation

IRC §162(m) Changes for Public Companies. The Act repeals the performance-based compensation exception to the $1 million pay cap under IRC §162(m) and expands the definition of “covered employee” to include anyone who holds the CEO or CFO position at any time during the tax year plus the three highest paid executive officers for the year. Under the new rules, once a covered employee, always a covered employee with respect to compensation paid in future years – including compensation that becomes payable following retirement (e.g., severance and deferred compensation) and amounts payable to beneficiaries. Under a transition rule, compensation payable pursuant to a written binding contract in effect on November 2, 2017 that is not materially modified thereafter is exempt from the new requirements.

Qualified Retirement Plans

Loan-Offset Rollovers. Previously, a terminated participant who defaulted on a plan loan was deemed to have taken a taxable distribution for the outstanding loan balance unless that amount was contributed to another qualified plan or IRA within 60 days of termination. The Act extends the 60-day period to the due date (including extensions) for filing the participant’s tax return for the year the loan default occurs.

2016 Disaster Relief. Much like the relief provided by the Disaster Tax Relief and Airport and Airway Extension Act of 2017 (see our previous Client Advisory), the Act provides individuals impacted by major disasters in 2016, including Hurricane Matthew, with penalty-free access to retirement funds through qualified distributions of up to $100,000, allows the amount distributed to be repaid over 3 years, and allows taxpayers who cannot repay the distribution to spread out any income inclusion over 3 years. Plan amendments implementing these provisions must be adopted on or before December 31, 2018 (for calendar year plans).

Hardship Withdrawals. Defined contributions plans that allow for safe-harbor hardship withdrawals should examine the extent to which hardship withdrawals may be permitted due to casualty losses as the Act restricts what may be classified as a casualty loss.

To read the full advisory, click here.

The Rising Cost of “Hush Money” – Congress Strips Tax Incentives for Sexual Harassment Nondisclosure Agreements

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

You can count Congress among the institutions caught in the ground swell of the #MeToo movement, and they’re using the tax code to prove it.

Buried in the various changes of the new tax bill, Congress included Section 13307, titled “Denial of Deduction for Settlements Subject to Nondisclosure Agreements Paid in Connection with Sexual Harassment or Sexual Abuse.” Specifically, Section 13307 amends the Internal Revenue Code Section 162(q) to state:

No deduction shall be allowed … for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.

Effective for amounts paid or incurred after December 22, 2017, this deceptively complex provision will have broad impact for businesses attempting to resolve sexual harassment claims.

Generally speaking, the old language of Section 162 allowed payments made under settlement agreements and attorneys’ fees paid in connection with the defense of an action as tax deductible for businesses as a business expense.

However, from the plain language of this new provision, businesses faced with the prospect of settling a sexual harassment claim will now have to make a choice – are they to choose between their bank account or their public image?

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