Work Knowledge Blog

Work Knowledge Blog

OSHA Update—RAGAGEP Standard Interpretation

Posted in Compliance, OSHA, Policies & Practices

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a Standard Interpretation on the topic of Recognized and Generally Accepted Good Engineering Practices (“RAGAGEP”) in Process Safety Management (“PSM”) Enforcement.  This new interpretation replaces an interpretation of the same title dated June 5, 2015.  In replacing it though, OSHA does not make any substantive changes to the PSM regulatory requirements; standard interpretations cannot do so.

OSHA’s PSM regulations generally contain requirements for managing hazards associated with processes for highly hazardous chemicals.  A “process” is any activity involving highly hazardous chemicals, including using, storing, manufacturing, handling, and/or on-site moving.  29 C.F.R. § 1910.119(b).  PSM requirements apply to certain toxic and reactive chemicals at or above threshold levels and certain flammable gases and liquids.  29 C.F.R. § 1910.119(a)(1).

The PSM standard is multifaceted.  At a high level, it requires employers, among… Continue Reading

Much Awaited Wage and Hour Rules Announced

Posted in Compliance, Wage & Hour

As anticipated in today’s earlier blog post, we are getting an announcement tomorrow at 2 p.m. Eastern on May 18, 2016.  The White House announced the expanded overtime laws in a press release on May 17, 2016.  The actual regulations will be published and come with a compliance date of December 1, 2016.

The final regulations vary significantly from the proposed regulations

1.The salary threshold for meeting the exemption is $47,476 annually ($913/weekly) up from the current threshold of $23,660 but lower than the original proposal of $50,440.

2. The salary threshold will be updated every three years based on wage growth versus the annual update.

3. Raises the highly compensated exemption from $100,000 to $134,004.Makes no changes to the duties tests versus the proposal that primary duty be more than 50% of the employee’s time.

4. Allows incentive compensation to comprise at least 10% of the new salary threshold.

We will continue to provide… Continue Reading

New Overtime Rules To Be Announced Wednesday

Posted in Compliance, Wage & Hour

Several news sources are reporting that the Department of Labor will announce its much anticipated overtime rules on Wednesday, May 18, 2016.  The political pundits believe these final regulations will include a new salaried basis test of $47,500 ($913.46 per week).  This amount is more than double the current threshold of $23,660.  Currently, the speculation is that the “duties” test did not change.

Vice President Biden along with Labor Secretary Tom Perez and Senator Sherrod Brown are expected to announce these final regulations tomorrow (May 18) at an event in Columbus, Ohio.

Employers will likely have 60 days to comply with the new regulations.  We will update with the final regulations after the announcement.  Any employee who earns under the threshold will need to track hours worked and be paid overtime.  Our labor attorneys can assist with your compliance efforts.

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OSHA Update—Final Rule on Workplace Injury and Illness Reporting

Posted in Compliance, OSHA, Policies & Practices

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) announced that it has finalized a new recordkeeping and reporting rule for certain employers.  At its core, the new rule amounts to what many employers are sure to view as OSHA’s attempt to shame them publically.  That is, the new rule requires covered employers to submit information from their OSHA Forms 300, 300A, and/or 301 (depending on employer size), which the agency will then post on its public website.

OSHA states that the new rule is expected to take effect on August 10, 2016, but the new data submissions and public disclosure elements will not be phased in until 2017.  The new rule will not alter employers’ obligations regarding the completion or retention of records.  But employers covered by the recordkeeping regulations and employing 250 or more individuals must electronically submit their Forms 300A to… Continue Reading

OSHA Update—Eye and Face Protection

Posted in Compliance, OSHA, Policies & Practices

On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) announced that employers across various industries will be subject to updated eye and face protection standards.  The final rule became effective on April 25, 2016, and revised related requirements in the general industry, maritime, and construction standards.  Employers subject to these standards should assess their eye and face safety equipment, policies, and procedures to ensure they are in compliance with the applicable OSHA regulations.

Personal protective equipment (“PPE”) for the eyes and face is intended to protect employees from hazards associated with flying objects and splashes of hazardous chemicals, among other similar and associated hazards.  According to OSHA, the final rule primarily does three things to update employee protections against these hazards.  First, it incorporates the most recent ANSI/International Safety Equipment Association eye and face protection standard.  Second, it removes the “oldest-referenced edition” of… Continue Reading

Joint Employment Concerns Grow for Franchisors

Posted in Wage & Hour

Recent guidance issued by the Department of Labor ensures that, like 2015, joint employment will remain a hot topic for franchisors in 2016. Last year, the National Labor Relations Board (NLRB) captured the full attention of the franchise industry by “restating” the standard for finding joint employment in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015). Though significant, direct, and immediate control was traditionally required to find that a company (like a franchisor) was the joint employer of another company’s employees, the NLRB held that indirect control or the reserved right to control, even if unexercised, may be sufficient to find a joint-employer relationship. In addition, the NLRB’s general counsel initiated several actions against McDonald’s USA, LLC and its franchisees, which seek to hold McDonald’s USA liable as “joint employer” for alleged labor violations by franchisees. Now the Department of Labor is entering the joint employment… Continue Reading

OSHA’s Stronger Enforcement Options in 2016

Posted in OSHA

In recent years, the Occupational Safety and Health Administration (“OSHA”) has faced perceived criticism that its enforcement options have failed to provide effective disincentives for employers to comply with workplace safety regulations.  Specifically, for the last twenty-five years, OSHA’s maximum penalties have remained stagnant, and published data shows that criminal referrals are limited.  But it has never really been a question of whether OSHA possesses the desire or aggression to enforce its regulations.  Rather, it is more of whether its bark is supported by a strong bite.  And that question appears to be answered in the affirmative in 2016.

Civil Penalty Increases

Under the current statutory scheme, the maximum civil penalties for each classification of violation are as follows:  (1) Willful—$70,000.00; (2) Repeat—$70,000.00; (3) Serious—$7,000.00; (3) Other-than-Serious—$7,000.00.  29 U.S.C. §§ 666(a), (b), (c).  These penalties were set in 1990, and they have remained that way… Continue Reading

How Texas’ New “Open Carry” Law Affects Texas Businesses

Posted in Compliance

On Jan. 1, 2016, Texas’ new open carry law took effect. The law allows anyone with a proper license to openly carry a handgun “in plain view” anywhere in Texas if properly stored in a shoulder or belt holster. Prior to Jan. 1, Texas only permitted individuals to carry a handgun if it was properly concealed. Many clients have asked us how the new open carry law affects their existing weapons policies and what rights they have to prohibit open carry on their property.

How does the new law work?

Much like Texas’ concealed carry law, the new open carry law gives Texans the right to openly carry handguns—even on private property. Private property owners have a greater right to prohibit the open (and concealed) carrying of handguns on their premises, but only if they take affirmative steps to enforce their right. This is because the law’s default position is… Continue Reading

United States Department of Labor Intensifies Focus on Independent Contractor Classifications with New Administrator’s Interpretation

Posted in Wage & Hour

Last month, the United States Department of Labor issued Administrator’s Interpretation No. 2015-1, regarding “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.”  While the Interpretation does not represent a change in the law, it is certainly an indication that the DOL has established a renewed focus on employers’ use of independent contractors in their business models.  And because the Interpretation is clear that the guidance it provides may be used in FMLA, as well as FLSA, cases, the DOL and plaintiffs in misclassification lawsuits may cite to it in a large variety of employment litigation matters in the future.

The Interpretation essentially solidifies the wide-angle lens through which the DOL will review and find the presence of employment relationships.  In fact, Administrator Weil stated frankly that “most workers are employees under… Continue Reading

Generic, All-Encompassing Employment Releases May Not Actually Release All Employment-Related Claims, Including FLSA Claims

Posted in Compliance, Wage & Hour

The Fifth Circuit Court of Appeals, which includes federal courts sitting in Texas, recently held that a generic, broad state court settlement release did not bar two former employees’ subsequent unpaid overtime compensation claims against their former employer, even though the parties discussed the topic of unpaid wages during settlement negotiations and the release specifically included all claims arising from the former employees’ employments with their former employer.

This case actually involves two lawsuits between the employees and their former employer. In the first lawsuit – filed by the employer in Texas state court – the employer sued the employees for breaching their non-competition agreements. Several months later, the employees and the employer entered into a settlement agreement wherein the employees released the employer from “all claims and causes of action related to or in any way arising from [the employees’] employment[s] with [the employer], whether based in … any federal,… Continue Reading