• 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

 

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 EEOC’s New Guidance Takes Us Back to the Basics

This post was 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.

Kelley Drye team: Barbara Hoey, Mark Konkel

As we previously reported on this blog, Congress and the Trump administration have revived the Congressional Review Act (CRA) and set about rescinding a series of regulations promulgated during the Obama presidency.  Congress’ authority to invalidate an executive agency rule is rooted in Article I of the Constitution, which vests “[a]ll legislative Powers [t]herein granted” in Congress.  While Congress has delegated rule-making or quasi-lawmaking authority to executive agencies, Congress ultimately retains all legislative power, and thus any power delegated to the executive by Congress can later be restricted or withdrawn.

But according to a new lawsuit filed by the Center for Biological Diversity, the CRA amounts to congressional invasion of executive branch authority.   At issue in Center for Biological Diversity v. Zinke, Case No. 3:17-cv-00091-JWS (D. Alaska Apr. 20, 2017), is Public Law No. 115-20, which invalidated a rule adopted by the Interior Department near the end of President Obama’s second term. See Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,248 (2016). The rule prohibited certain methods of predator control within Alaska’s national wildlife refuges.

Continue Reading Environmental Organization Challenges Constitutionality of the Congressional Review Act

Finally, on April 27th, after months of waiting, President Trump’s second nominee for the position of US Secretary of Labor and only Latino cabinet member, Alexander Acosta, was confirmed. Acosta, dean of Florida International University College of Law and former US attorney, received the nomination in mid-February after the first nominee, Andrew Puzder, withdrew his name due to a potential conflict of interest. Acosta has patiently waited over the last few months as other nominees including, Justice Neil Gorsuch and Secretary of Agriculture, Sonny Perdue, took priority. Acosta is no stranger to the confirmation process, as he was nominated and confirmed for three positions during the George W. Bush administration. The road to a successful confirmation can often be long and winding, however Acosta’s patience clearly paid off, and now he can get to work.

 

During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive.  The Regulatory Accountability Act of 2017 is one remarkable example.  It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it.  But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5.  If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor. 

 Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act.  The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”  “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators.  In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute.  Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

 In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer.  These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II).  Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability.  They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions. Continue Reading Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2017”

EPA Issues Final Rule Overhauling RMP Facility Chemical Safety Program

Prior to the close of the Obama administration and after much anticipation, the Environmental Protection Agency (“EPA”) issued its final rule overhauling the Risk Management Plan (“RMP”) facility chemical accident prevention program,[1] the EPA counterpart to the Occupational Safety & Health Administration’s Process Safety Management program.  The new rule strengthens requirements for facilities to reduce risks of accidents, enhance emergency preparedness requirements, and ensure that first responders and the public have information to prepare for and respond to accidents in their communities.  The rule is largely the same as the proposed version issued in March, requiring facilities to conduct third-party analyses after incidents and near-misses, coordinate with local authorities, and conduct safer alternatives analyses.  In response to industry criticism, EPA has walked back several provisions, dropping the requirement to share information on chemical hazards with local emergency planning committees and removing the requirement that facilities make some information available on public websites or at libraries.

However, EPA’s efforts may prove fruitless due to the expected push of the incoming Trump administration and Republican lawmakers to block or kill the rule. The hastened timeline for development of the rule has also created doubt about whether EPA has adequately assessed the rule’s costs and benefits.  The rule will not take effect for 60 days after its publication in the Federal Register; therefore, President Trump could order the Federal Register not to publish it.  Additionally, under the Congressional Review Act the legislative branch could officially reject the final RMP, thereby blocking a future administration from developing a “substantially similar” rule.

[1] The final rule has not yet been printed in the Federal Register; a prepublication version is available at https://www.epa.gov/sites/production/files/2016-12/documents/rmp_final_rule_dec_20_2016_unsigned_version_for_web_with_headers_12-27-16.pdf.