Work Knowledge Blog

Work Knowledge Blog

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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Federal Defend Trade Secrets Act (“DTSA”) signed into law in May 2016

Posted in Uncategorized

The federal Defend Trade Secrets Act (“DTSA”) includes protections for trade secret owners, including civil seizure in extraordinary circumstances, injunctive relief, and the availability of attorneys’ fees and exemplary damages on top of actual damages. While much of this law is about a protection of intellectual property, employers must be aware of a significant issue regarding the DTSA. The DTSA requires that, as of May 12, 2016, all employment agreements that include protections for confidential information or trade secrets must include notice and/or reference to the DTSA’s whistleblower safe harbors and immunity to comply with the DTSA. The failure to include such notice means that an employer will not be able to recover attorneys’ fees or punitive damages. Employers could do so by updating their employment agreements and/or reference to a company policy that provides the required notice. The notice requirement is prospective; meaning that only contracts and agreements signed employees, contractors,… Continue Reading

Proposed Changes to Board Law on Employer’s Unilateral Withdrawal of Recognition

Posted in NLRB, Uncategorized

Recently, the NLRB General Counsel issued a memorandum to Regional Directors, Officers-in-Charge, and Resident Officers recommending an alternative theory to plead and argue when challenging an employer’s withdrawal of recognition.

Under current precedent, an employer may unilaterally withdraw recognition of an incumbent union if it has objective evidence that the union has actually lost majority support. See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717 (2001). The GC now proposes a new framework that was rejected in Levitz: requiring election results to prove the union’s loss of majority support. In proposing this previously rejected framework, the GC points out that in Levitz, the Board left open the possibility of revisiting this issue.

To effectuate this new approach, the GC urges Regions to plead an alternative theory of violation: “that the employer violated Section 8(a)(5) by unilaterally withdrawing recognition absent the results of a Board election.” Memorandum GC 16-03.

The GC claims… Continue Reading

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