Work Knowledge Blog

Work Knowledge Blog

Legal Considerations for Employers during Election Years—Part II

Posted in Compliance, NLRB, Policies & Practices

With the Republican National Convention wrapping up this week, political conversation is assuredly becoming a more common occurrence in workplaces around the country.  Importantly for employers, political action and speech in the workplace threatens disruption and damage to relationships among coworkers, as the political divisions in this country are exceedingly acute this campaign season.  This leads us to the question we are addressing today in the second in our election-year series on the Work Knowledge Blog:  whether employers can restrict political speech of their employees.  In other words, is there such a thing as “free speech” in the workplace?

First, it is worth noting at the outset that the First Amendment’s right of free speech does not apply to private employers.  See, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708 (1985).  In other words, the Constitution does not protect an employee’s speech in the workplace, and similarly,… Continue Reading

Legal Considerations for Employers during Election Years—Part I

Posted in Compliance, Policies & Practices

According to the Texas Secretary of State, 73.75% of the voting age population in Texas is registered to vote this year.  Tex. Sec’y of State, Turnout and Voter Registration Figures (1970-current), available here.  Frankly, an even higher percentage probably has an opinion about a candidate or issue, regardless of whether they will cast a vote.  This is especially true every two to four years when elections garner considerable national and state-level attention and energize the electorate as few events can.  See generally id. (listing voter turnout statistics for various elections and votes over the last four and a half decades).  This election year appears to be precisely one of those times, see id., so employers may be faced with some particularly heated workplace issues as the campaign makes its way into the workplace.  With that in mind, over the next several weeks on the Work Knowledge… Continue Reading

OSHA Update—Employee Safety during the Summer Heat

Posted in OSHA

For employers with outdoor workspaces (such as in the oil and gas and construction industries), the summer heat necessitates a delicate balance—maintaining a safe workplace and ensuring the work gets done.  Employers must address a two-fold problem in striking this balance: (1) concern for the health and safety of employees; and, (2) implementation of safety policies and practices that comply with the standards of the Occupational Safety and Health Administration (“OSHA”).  See 29 U.S.C. § 654(a).  This is especially true in light of the pending heat waves across the nation, which may lead to an increased risk of heat-related illnesses, such as heat exhaustion, heat stroke, heat rash, heat cramps, and dehydration.

OSHA encourages employers to use its heat index guidelines to provide appropriate protections to employees against these heat hazards.  Employers should remember to account for humidity and direct sunlight when… Continue Reading

OSHA Update—Tips for Surviving OSHA Inspections—Part V

Posted in OSHA

In this final part of our series on how to manage OSHA inspections effectively, we end with a “tip” that is really more of a requirement.  And it is for an employer to remember key deadlines.

There are several important deadlines employers should remember during and after the OSHA inspection and citation processes, and a failure to meet these deadlines can lead to adverse consequences for the obligated party:

Stated Response Deadline for a Subpoenas Duces Tecum.  This is a variable deadline, and it is usually a short-fuse (i.e., seven to ten calendar days from the date the subpoena is served).  Employers may be able to request or negotiate extensions, if a proper and complete response will require more time.  As a matter of best practices, this negotiation should be conducted or confirmed in writing.

Six-Month Statute of Limitations for the Issuance of Citations.  Section… Continue Reading

OSHA Update—Tips for Surviving OSHA Inspections—Part IV

Posted in OSHA

Over the last several weeks on the Work Knowledge Blog, we have outlined tips for employers to ready themselves for a potential influx of OSHA inspections.  OSHA inspections are often time-intensive and nerve-racking.  And they are mostly unexpected, so an ill-prepared employer may feel an intense pressure upon the beginning of an OSHA inspection.  That intensity may be markedly increased if the employer needlessly (i.e., without a legal right or other lawful justification) fails to cooperate with the OSHA compliance officer during the inspection.  Indeed, an unjustified failure to cooperate may well lead to a referral to a federal prosecutor for obstruction of justice.

This does not mean, however, that employers should not defend themselves and protect their rights.  So the fourth tip in this series is for an employer to be (cautiously) cooperative with OSHA compliance officers.

With that in mind, the… Continue Reading

OSHA Update—Tips for Surviving OSHA Inspections—Part III

Posted in OSHA

As we noted in the previous weeks on the Work Knowledge Blog, employers may see a marked increase in OSHA inspections in the coming months due to the agency’s focus on PSM related issues.  This focus includes proposed revisions to OSHA’s appropriations language to allow for PSM audits of small establishments and various contemplated changes to the PSM standard itself.  These proposed changes will be especially significant to employers when the civil penalty increases for OSHA violations take effect in August of this year.

In the previous two parts in this series, we have outlined a couple of tips to help employers prepare themselves and their workforce for safe workplace operations and, in doing so, contemporaneously prepare for OSHA inspections.  We will now turn to handling the OSHA inspection itself.  The first step is for an employer to know what rights… Continue Reading

OSHA Update—OSHA Small Business Advocacy Review Panel Commences Teleconferences to Discuss Possible Revisions to Process Safety Management Standard

Posted in OSHA

On June 2, 2016, the Occupational Safety and Health Administration (“OSHA”) convened the Small Business Advocacy Review Panel (“SBAR Panel”) in accordance with the Small Business Regulatory Enforcement Fairness Act.  The SBAR Panel was convened as a follow-up to Executive Order 13650 entitled “Improving Chemical Facility Safety and Security” (the “EO”).   The EO stated that OSHA needed to “identify issues related to modernization of the [Process Safety Management (“PSM”)] Standard and related standards necessary to meet the goal of preventing major chemical accidents.”

Employers have seen this push over the last year with OSHA’s proposal of appropriations language revisions to expand PSM audits and issuance of multiple Standard Interpretations focused on PSM issues, including RAGAGEP and the Retail Exemption.  The latter Standard Interpretation has since been made subject to “interim enforcement policies delaying active enforcement of the interpretation” until September… Continue Reading

OSHA Update—Tips for Surviving OSHA Inspections—Part II

Posted in Compliance, OSHA, Policies & Practices

Last week, we outlined that OSHA’s proposed appropriations language revisions for FY 2017 may signal increased inspections, particularly PSM audits, for certain employers in Region 6, which includes Texas, Oklahoma, Arkansas, Louisiana, and New Mexico.  Employers have an opportunity to get and stay prepared now for this possible inspection glut.  To that end, over the next several weeks, we are outlining some tips for employers to consider and implement.  This is the second segment of that five-part series.

Be proactive in training and coaching employees in workplace safety.

As we outlined last week, an employer’s regular review, update, and revision of written policies, procedures, and safety information is a necessary first step to ensuring its employees are educated about workplace safety.  But employees need—and employers are required to provide—further instruction in the form of ongoing training.  The PSM standard, for example, requires initial training… Continue Reading

OSHA Update—Tips for Surviving OSHA Inspections—Part I

Posted in Compliance, OSHA, Policies & Practices

With all the changes from the Occupational Safety and Health Administration (“OSHA”) over the last year or so, employers need to get prepared for increased inspections and safety audits in the near future.  This is especially true with the appropriations language revisions OSHA has proposed for FY 2017.  OSHA’s stated purpose for its proposal is, among other things, to “allow targeted safety and health inspections of small establishments that have the potential for catastrophic incidents” and that are particularly covered by OSHA’s Process Safety Management (“PSM”) regulations.   OSHA even cited the incident in West, Texas, as an example of the need for this type of targeted inspection, so employers in OSHA’s Region 6—especially those covered by the PSM regulations—may see an increase in attention from the agency.

Employers should take action now to prepare for that attention.  With that in mind, we will be doing… Continue Reading

WARN Act Claims Fail Against Oilfield Drilling Company

Posted in Lawsuits, Policies & Practices

Today a Dallas federal court found that the WARN Act did not apply to drilling land rigs aggregated within a particular region. A Dallas firm has sued several drilling companies claiming proper WARN notice was not provided to laid off oilfield workers. The court did not rule on whether the rigs could be aggregated with a local yard or the local office to reach the minimum threshold of 50 employees. The case will likely be appealed to the Fifth Circuit, so stay tuned.

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