Work Knowledge Blog

Work Knowledge Blog

OSHA Update—New Guidance on Settlement Agreements in Whistleblower Cases

Posted in OSHA, Retaliation/Whistleblower

The Occupational Safety and Health Administration (“OSHA”) recently issued new guidelines for the approval of settlement agreements between employers and employees during whistleblower cases. These guidelines will replace Chapter 6, paragraphs XII.E.2 and 3, of the OSHA Whistleblower Investigation Manual, the current version of which was published on January 28, 2016.   The new guidelines will go into effect immediately.

The new guidelines confirm that OSHA will not approve settlement agreements that prohibit or restrict employees from “participating in protected activity.”  In this regard, OSHA is particularly focused on the inclusion of confidentiality or “gag” provisions, non-disparagement clauses, and liquidated damages provisions in proposed settlement agreements.  OSHA states that it specifically disapproves of the following:

Provisions that restrict an employee’s ability to provide information to the government or testify in related proceedings about the employer’s past or future conduct; Provisions that require an employee to notify the employer… Continue Reading

Restaurant Employers Take Note—the Fifth Circuit Offers Instruction on Proper Deductions from Credit Card Tips

Posted in Wage & Hour

The Fifth Circuit recently decided how much a restaurant employer could deduct from an employee’s tips received by credit card to offset the costs associated with collecting and distributing the tips. In Steele v. Leasing Enterprises, Limited, the Fifth Circuit concluded the employer can only deduct the direct costs associated with paying out the tips. Because the restaurant deducted more than the fees and costs relating to the credit transactions, it lost the benefit of the statutory tip credit. All restaurant employers should take notice of this expensive lesson.

A class of servers sued Leasing Enterprises, Limited, which operates the Perry’s restaurant chain in Texas, for deducting 3.25% of the tips customers leave for them via credit card. Perry’s conceded that the chargeback exceeded the fees charged by the credit card issuer, but contended that the expenses related to obtaining the cash to pay out the servers were also properly… Continue Reading

Legal Considerations for Employers during Election Years—Part III

Posted in Compliance, Discrimination, NLRB, Policies & Practices, Retaliation/Whistleblower, Social Networking

With the Presidential election heating up, employers may see an increasing interest in politics among their employees.  As we have covered recently in the Work Knowledge Blog, private employers are not bound by the First Amendment’s right to free speech.  But employees do have certain limited rights in the workplace relevant in election years, including the right to paid voting leave under certain state laws and the right to be free from employer threats about, or undue influence of votes for or against, a candidate or issue.  With that in mind, in this part of our election-year series, we will address the proper balance between employer and employee rights in the workplace through written employment policies.

As it relates to election-year employment law considerations, three types of policies—in addition to voting leave policies, which we covered previously—come immediately to mind: (1) codes… Continue Reading

OSHA Update—Civil Penalty Increases Take Effect After August 1, 2016

Posted in OSHA

After today, August 1, 2016, the civil penalties assessed by the Occupational Safety and Health Administration (“OSHA”) will increase by 78%.  This is actually less than the 82% that was originally allowed by Congress, but not by much.  The new maximum penalties will be as follows: (1) Serious, Other-than-Serious, and Posting Requirement Violations—$12,471 per violation; (2) Failure-to-Abate Violations—$12,471 per day beyond the abatement date; and, (3) Willful or Repeat Violations—$124,709 per violation.  These new maximum penalties will apply to alleged violations occurring after November 2, 2015, but cited after August 1, 2016.

In the coming year, employers will see the immediate and practical impact of these increases. As we noted in a related post on the Work Knowledge Blog earlier this year, a couple of things could occur.  First, OSHA could cite less varied violations and focus on actual or perceived safety issues, which… Continue Reading

OSHA Update—Delayed Enforcement of Anti-Retaliation Provisions for New Reporting Rule

Posted in Compliance, OSHA, Policies & Practices

The Occupational Safety and Health Administration (“OSHA”) has announced that it will delay enforcement of the anti-retaliation provisions in its new workplace injury and illness reporting rule.  Originally, it was scheduled to go into effect on August 10, 2016, but enforcement of the anti-retaliation provisions will now begin on November 1, 2016.  OSHA stated that it intends to “conduct additional outreach and provide educational materials and guidance” to employers during the delay.

In a previous post on the Work Knowledge Blog, we discussed the final rule on workplace injury and illness reporting.  As noted in that post, employers need to ensure that their policies and practices for workplace injury and illness reporting are reasonable and do not serve as a deterrent to reporting.  For example, while not prohibited in the new rule, the new rule could affect how employers draft and actually implement their drug and alcohol… Continue Reading

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