Work Knowledge Blog

Work Knowledge Blog

OSHA Update—Texas Judge Denies Injunction Against Enforcement of Anti-Retaliation Provisions of Final Rule

Posted in OSHA, Policies & Practices, Retaliation/Whistleblower

On November 28, 2016, Judge Sam Lindsay in the United States District Court for the Northern District of Texas denied an employer group’s request for a nationwide injunction against the Occupational Safety and Health Administration’s enforcement of certain anti-retaliation provisions in the new final rule.  As we reported previously on the Work Knowledge Blog, the employer group filed a Complaint for Declaratory and Injunctive Relief in July in the Northern District of Texas, captioned TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D.  The Complaint challenged the new final rule to the extent it prohibited or limited safety incentive programs and/or mandatory post-accident drug testing programs.

After considering briefing by both the employer group and the Secretary of Labor on the court’s authority to issue a nationwide injunction, among other issues, Judge Lindsay held that the employer group failed… Continue Reading

Court Issues Injunction Against New Salary Thresholds

Posted in Wage & Hour

In a much anticipated decision, Judge Amos Mazzant, United States District Court Judge for the Eastern District of Texas, issued a nationwide injunction prohibiting the Department of Labor from implementing the regulations that were to take effect on December 1 for the new salary thresholds for exempt, so-called “white collar” employees.  Judge Mazzant found that the injunction preserves the status quo while he rules on the ultimate merits as to whether the Department of Labor has the authority to promulgate the salary thresholds.  Specifically, he noted that if the salary thresholds are determined to be valid, then this injunction only delays the implementation of those thresholds.

So for employers poised to increase salaries for its exempt employees next week, there is (at least temporary) relief.

 

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Court Takes Injunction on Salary Threshold Levels Under Advisement

Posted in Wage & Hour

Today, Judge Mazzant of the Eastern District of Texas Sherman Division heard arguments on an Emergency Motion for Preliminary Injunction regarding changes to the federal salaried exemption threshold, which, absent an injunction, become effective on December 1, 2016.

During the hearing, which lasted over three hours, Judge Mazzant asked several questions that provide insight into the issues he views as important to his ruling. For example, he questioned whether the court had authority to issue a nationwide injunction. He also asked how to reconcile Auer v. Robbins, 519 U.S. 452 (1997), a case that gives broad authority to the Secretary of Labor to “‘define and delimit’ the scope of the exemption for executive, administrative, and professional employees.” Judge Mazzant questioned the Department of Labor on its authority to define the limit. Judge Mazzant also noted that his ruling will not be based on political rhetoric or speculation about the change in… Continue Reading

OSHA Update—Surge in Enforcement Efforts to Reduce Amputations Hazards in Arkansas, Louisiana, Oklahoma, and Texas

Posted in OSHA

The Occupational Safety and Health Administration (“OSHA”) recently announced that it will have a “heightened focus” on amputation hazards in Region 6, which comprises Arkansas Louisiana, Oklahoma, and Texas.  OSHA reports that 2,600 amputations occurred nationwide in 2015, most of which were in the manufacturing industry.  OSHA’s goal in this initiative will be on increased enforcement.

With that in mind, OSHA will begin with “targeted enforcement, including on-site inspections” of employers with machinery or equipment that could expose employee to amputation hazards.  These on-site inspections will be broad and will encompass all aspects of operations, working conditions, recordkeeping, and safety and health programs.  OSHA stated that it will “conduct a surge of planned inspections” immediately but confirmed that it will continue to inspect based on complaints, hospitalizations, and fatalities as well.

In its announcement, OSHA stated that amputations occur “most often” due to… Continue Reading

Legal Considerations for Employers during Election Years—Reminder

Posted in Compliance, Policies & Practices, Uncategorized

With Election Day rapidly approaching next week, employers should be prepared for a host of issues associated with election year politics in the workplace.  We recently wrote about some of the key issues facing employers in election years on the Work Knowledge Blog.  As a reminder about those issues, here are links to the related posts:

(1) Voting Leave Rights

(2) Free Speech in the Workplace

(3) Drafting and Implementing Employment Policies

If you are an employer and have any questions about these  issues or about how to comply with other employment laws during an election year, contact an experienced employment law attorney.

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OSHA Update—OSHA Issues Enforcement Guidance on New Reporting and Anti-Retaliation Provisions

Posted in OSHA, Policies & Practices, Retaliation/Whistleblower

The Occupational Safety and Health Administration (“OSHA”) has issued a memorandum to its Regional Administrators and published a new webpage outlining its planned enforcement of the new reporting and anti-retaliation provisions.  The agency’s guidance does little more than restate and expound upon what it has already provided in previous documents, such as in the 2012 Fairfax Memorandum and the comments to the final rule itself.  Nevertheless, it may be easier for employers to review their discipline, post-accident drug testing, and safety incentive programs with these guidelines in hand.

As we reported previously on the Work Knowledge Blog, OSHA issued new rules 29 C.F.R. §§ 1904.35, 1904.36, 1904.41 in May 2016.  After a couple of delays, Sections 1904.35 and 1904.36 are set for enforcement on December 1, 2016—unless, of course, OSHA delays that enforcement again unilaterally or at the… Continue Reading

OSHA Update—OSHA Delays Enforcement of Anti-Retaliation Provisions for Second Time

Posted in OSHA, Retaliation/Whistleblower

The Occupational Safety and Health Administration (“OSHA”) announced today that it will delay enforcement, for a second time, of the anti-retaliation provisions in its injury and illness tracking rule until Dec. 1, 2016.  We previously reported on the Work Knowledge Blog that the first delay in enforcement may have been associated with ongoing litigation over the provisions in the Northern District of Texas, captioned TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D.  OSHA has now confirmed that its newest delay is in response to Judge Lindsay’s request for more time to consider the employer group’s motion for injunctive relief to prevent enforcement of the provisions.

Judge Lindsay has specified that any additional briefing by the parties must focus on “the issues of (1) whether a nationwide injunction that applies to Plaintiffs, as well as nonparties, is warranted in this case;… Continue Reading

OSHA Update—OSHA Issues Final Rule Regarding Retaliation Claims under the Affordable Care Act

Posted in OSHA, Retaliation/Whistleblower

The Occupational Safety and Health Administration (“OSHA”) announced yesterday that it has published a final rule regarding how it will handle retaliation claims brought by employees under the Affordable Care Act (“ACA”).  OSHA is generally tasked with investigating whistleblower complaints brought by employees under the Occupational Safety and Health Act, as well as many other statutes, including the ACA.  And its new rule adds another layer of regulation in that effort.

The ACA was signed into law in March of 2010.  It amended the Fair Labor Standards Act by adding Section 18C, which protects employees from discrimination and retaliation “because the employee (or an individual acting at the request of the employee) has” (i) received a premium assistance credit or a reduction in cost-sharing under a qualified health care plan, (ii) provided information to an employer or a government agency… Continue Reading

OSHA Update—Proposed Revisions Intended to Modernize Various OSHA Standards

Posted in Compliance, OSHA, Policies & Practices

The Occupational Safety and Health Administration (“OSHA”) recently announced that it is proposing eighteen revisions to its recordkeeping, general industry, maritime, and construction regulations.  With the changes proposed, OSHA intends to modernize certain standards that may be “confusing, outdated or unnecessary.”  These proposed revisions are the fourth part of the Standards Improvements Project, which started in 1995.  2011 was the last time OSHA proposed revisions under the Project.

The revisions are proposed as follows:

Reporting Job-Related Hearing Loss: Clarifies that the agency’s determination of whether an employee’s hearing loss is “work-related” is made using specific, clear criteria. Lockout/Tagout: Clarifies employers’ duties to protect employees from “unexpected energization” during “servicing” of equipment to remove the word “unexpected” from the requirement. Chest X-Rays: Removes the requirement to conduct periodic chest x-rays for inorganic arsenic, coke oven emissions, and acrylonitrile. X-Ray Storage: Permits storage of x-rays in digital format. Lung-Function Testing: Updates lung-function… Continue Reading

New OSHA Rule May Require Changes to Employer Drug Testing Policies

Posted in OSHA, Policies & Practices

Does your company have a blanket, post-accident drug testing policy?  Employers with this type of drug testing policy are concerned that they may run afoul of a new Occupational Safety and Health Administration Final Rule, which OSHA is set to begin enforcing on November 1, 2016.

The final rule, which went into effect on August 10, 2016, requires employers to establish reasonable procedures for employees to report work-related injuries and illnesses.  The rule further requires that any policy or procedure “not deter or discourage employees from reporting.”  The new requirements set forth in 29 C.F.R. § 1904.35 are part of OSHA’s ongoing efforts to encourage “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”

The rule itself does not mention employer drug testing policies, and OSHA claims that the “final rule does not ban drug… Continue Reading