Work Knowledge Blog

Work Knowledge Blog

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

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