Work Knowledge Blog

Work Knowledge Blog

OSHA’s PPE Update—Eye and Face Protection

Posted in 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

DOL Issues Proposed Changes to Threshold of Salary Basis Test – $970/week from $455/week

Posted in Compliance, Wage & Hour

Today, the U.S. Department of Labor issued proposed revisions to the minimum salary level that an employer must pay for an employee to be considered exempt under the Fair Labor Standards Act (FLSA). These long awaited revisions would, according to DOL estimates, increase overtime eligibility for approximately 4.6 million employees who are currently classified as exempt.

Under its proposed rules, the DOL sets the salary threshold for the white-collar exemptions at the 40th percentile of weekly earnings for full-time salaried workers nationwide. For 2013, using data from the Bureau of Labor Statistics, that figure was $921 per week, or $47,892 per year. The DOL anticipates that when its Final Rule goes into effect in 2016, the salary level will be $970 per week, or $50,440 per year.

The DOL further proposes that the salary level would be automatically updated annually. The DOL believes that this will make further… Continue Reading

USCIS Issues Final Rule Providing Employment Authorization to H-1B Spouses

Posted in Employment Authorization

On February 25, the United States Department of Homeland Security (DHS) issued final regulations making H-4 dependent spouse status holders eligible for an employment authorization document (EAD) under two circumstances: 1) where the H-1B principal is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker or 2) where the H-1B principle has been granted status pursuant to the 7th year extension provisions of Section 106(a) of the American Competitiveness in the 21st Century Act (AC21). The rule does not extend eligibility to H-4 dependents who are children. Eligible persons may file Form I-765, Application for Employment Authorization, concurrently with Form I-539, Application to Extend/Change Nonimmigrant Status. The effective date and of the rule is May 26, 2015, which will be the first day DHS will accept H-4 EAD applications. The rule was promulgated in 80 FR 10284.

H-4 nonimmigrant status is conferred on foreign nationals… Continue Reading

EEOC v. Freeman: Another Employer Victory in EEOC’s Enforcement Efforts Regarding Employer Use of Background Checks

Posted in EEOC

Last summer, we wrote about the federal Fair Credit Reporting Act (“FCRA”) requirements in conjunction with the EEOC’s effort to sue employers who use background checks for job applicants and employees. Essentially, the EEOC alleges that an employer’s use of background checks can lead to a disparate impact among applicants and employees. Thus far, the EEOC’s effort in this regard has been basically unsuccessful—albeit relentless.

Nevertheless, the Fourth Circuit recently issued another resounding defeat against the EEOC in its opinion, EEOC v. Freeman, No. 13-2365, 2015 WL 728038 (4th Cir. Feb. 20, 2015). Specifically, the Fourth Circuit affirmed the district court’s holdings in EEOC v. Freeman, 961 F. Supp. 2d 783, 793–96 (D. Md. 2013), which we discussed in our June 2014 Work Knowledge Blog post on this issue. Id. at *3. Like the district court, the Fourth Circuit took issue with the EEOC’s expert,… Continue Reading

Preparing for H-1B Season: Tips for Filing and After

Posted in Visas

With the coming of the New Year also comes the beginning of a new H-1B filing season.  The H‑1B visa program is the primary method United States companies use to hire foreign nationals in IT, engineering, and business professions.  H-1B visas are subject to a strict quota which does not meet the current demand.  The filing period for those limited number of H-1B visas begins on April 1.

Being ready for the April 1 H-1B filing deadline can be logistically tricky for many employers and HR departments.   Below is some guidance regarding the H-1B program and tips for making sure the H-1B filing process goes smoothly for employers and their new hires.

About the H-1B program

The H-1B program allows United States employers to hire foreign nationals to work in specialty occupations. A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge.… Continue Reading