Work Knowledge Blog

Work Knowledge Blog

OSHA Update—OSHA Chief Nominee Confirmation Hearing Adjourned

Posted in OSHA

The Senate committee hearing on the White House’s nominee for the Assistant Secretary of Labor for the Occupational Safety and Health Administration, Scott Mugno, has now been adjourned.  During the hearing, Mr. Mugno fielded various questions from the Senators, including about OSHA’s past policy of issuing press releases after issuing violations in excess of $40,000 and the funding and staffing levels of the agency.  Mr. Mugno assured the committee of his commitment to speak with career OSHA staffers, if confirmed, about these and other issues.  He also expressed his belief that the agency works with employers (e.g., is an “ally”).

We will continue to monitor the confirmation process and provide appropriate updates.

 

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OSHA Update—OSHA Chief Nominee Confirmation Hearing Underway

Posted in OSHA

On October 27, 2017, the White House announced its intent to nominate Scott Mugno to lead the Occupational Safety and Health Administration.  His and others’ confirmation hearings are currently underway before the U.S. Senate Committee on Health, Education, Labor & PensionsGardere will monitor these  proceedings and report back with updates, but you can watch the hearings live by clicking this link.

Mr. Mugno currently serves as the Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground and was formerly an attorney.  He is generally viewed as a less politicized nominee.  Experts on both sides of the labor equation hope he will strike the appropriate balance between enforcement and compliance assistance.

If you have any questions about the Occupational Safety and Health Administration, please contact an appropriately experienced employment attorney.

 

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The DOJ’s New Posture on Gender Identity Discrimination

Posted in Discrimination

On October 4, 2017, the Department of Justice (DOJ) delivered a blow to the rights of transgender Americans. Attorney General Jeff Sessions rescinded an Obama-era policy concluding that the Civil Rights Act bars workplace discrimination against transgender employees. Specifically, Sessions revoked a 2014 memo authored by then-Attorney General Eric Holder that said gender-identity discrimination fell under Title VII’s sex-discrimination umbrella. In 2014, Holder had announced that the agency had taken the position that Title VII of the Civil Rights Act, which bars discrimination “because of sex,” forbids transgender discrimination in employment.

But in the October 4 letter released on behalf of the DOJ, Sessions stated the agency’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status.” Sessions’ announcement is at odds with the majority of federal courts that have analyzed this question, and is also at odds with the current position of… Continue Reading

DOL to Issue Opinion Letters

Posted in Compliance, Wage & Hour

Secretary Acosta announced today, while testifying before a Senate appropriations committee, that the DOL will revive its former practice of issuing opinion letters. Under the Obama administration, the DOL stopped issuing opinion letters which were often used by employers to gain compliance assistance. The DOL received much criticized for that decision.

Additionally, Secretary Acosta stated that the DOL requested information on the Obama administration’s proposed overtime rule from the White House Office of Management and Budget. Employers will need to keep watch on this issue and what it could mean to changes to the FLSA.

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OSHA Update—Reminder to Stay Safe during Summer Heat

Posted in OSHA

With summer upon us, employers need to remember to stay proactive in addressing on-the-job heat hazards.  We wrote about this topic last summer on the Work Knowledge Blog.  While OSHA does not regulate heat-related illnesses and injuries specifically, the agency has the ability, and willingness, to cite employers under the General Duty Clause if employers do not do enough to keep their employees safe from heat hazards.

To address those hazards, OSHA generally recommends that employers:

Provide their workers with water, rest breaks, and shaded areas; Allow new or returning workers to have a take-it-easy or take-it-slow period while acclimating to warmer temperatures; Have an emergency plan and adequately train employees on heat illness and injury prevention; and, Monitor employees for symptoms of heat illness and injury.

Other OSHA requirements may be applicable to heat hazards as well.   See, e.g., 29 C.F.R. § 1910.151(b) (requiring employers to train a person… Continue Reading

Senate Confirms Acosta as Next Secretary of Labor

Posted in Policies & Practices, Wage & Hour

On April 27, 2017, the U.S. Senate confirmed Alexander Acosta as the next U.S. Secretary of Labor by  vote of 60-38.  Acosta is a former U.S. Department of Justice and National Labor Relations Board member.  Secretary Acosta will now face the monumental task of coordinating Trump’s policy shifts within the department.  A key issue demanding his attention is the Obama administration’s overtime rule, which increased the minimum salary threshold to $47,476.  During his confirmation hearing before the Senate committee, Secretary Acosta acknowledged that the threshold was due for an increase but stated that the move to $47,476 was excessive.  Because a Texas federal judge enjoined the prior administration’s rule prior to its December 1, 2016, effective date, Secretary Acosta will have to determine whether to pursue an appeal of the injunction to the Fifth Circuit Court of Appeals.  Employers will be watching these developments closely in the coming weeks and months.

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H-1B Sponsors: Prepare for Site Visits and Increased Enforcement

Posted in Immigration, Visas

On April 3, 2017, USCIS announced a program to deter and detect H-1B fraud and abuse. In the announcement, USCIS stated that too many American workers are ignored or unfairly disadvantaged as a result of the H 1B visa program. In an effort to combat fraud, USCIS will implement a targeted site visit program with the following focuses:

1. Employers where basic business information cannot be validated through commercially available data 2. H-1B dependent employers 3. H-1B employers who work off-site at another company or organization location

The announcement emphasizes that the focus of enforcement will be where fraud and abuse of the H 1B program may occur. USCIS stated that it will continue random nationwide site visits. USCIS also stated that the enforcement is not meant to target nonimmigrant employees for criminal or administrative action, but rather to identify employers abusing the system.

USCIS has also announced an email where reports of… Continue Reading

Proposed Texas Legislation Would Limit Employers’ Ability to Use Employees’ and Job Applicants’ Credit Information

Posted in Discrimination, FCRA, Policies & Practices

Texas State Representatives Terry Canales (District 40, serving part of Hidalgo County) and Nicole Collier (District 95, serving part of Tarrant County) have proposed legislation related to employers’ consideration of credit information for employees and job applicants.  HB 317 amends Chapter 52 of the Texas Labor Code by generally prohibiting a covered employer’s use of an employee’s or job applicant’s “credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers” as a “condition of employment” unless the employer meets one of 4 exceptions.  HB 317 has been pending in the Business and Industry Committee since testimony was first heard on the proposed legislation (in its original form) on March 13, 2017, but a vote is expected soon on this controversial bill.

Representative Canales testified at the March 13 committee hearing that agencies report that… Continue Reading

No More Second Chances Under Texas Uniform Trade Secrets Act (TUSTA)

Posted in Trade Secret

Plaintiffs now have only one bite-at-the-apple when pursuing claims of misappropriation of confidential information in Texas. 360 Mortg. Grp., LLC v. Homebridge Fin. Servs., Inc., No. A-14-CA-00847-SS, 2016 WL 900577, at *8 (W.D. Tex. Mar. 2, 2016). Tort claims focused on misappropriation of confidential information are preempted under the Texas Uniform Trade Secrets Act (TUSTA) if the origin of the claim focuses on the taking or use of another’s confidential information. For example, tort claims of unjust enrichment and constructive trust, based on a res of misappropriated confidential information, are pre-empted. On the other hand, conspiracy to misappropriate confidential information is not pre-empted, because the claim is based on an independent meeting of the minds.

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Texas Legislator Proposes Bill to Protect Workers’ “Political Beliefs”

Posted in Discrimination, Policies & Practices, Social Networking

Last week, Representative James White, a Republican representing District 19 (Hardin, Jasper, Newton, Polk, and Tyler Counties), proposed a new state law that would protect Texas workers from adverse actions for expressing their political opinions and views away from the job.  The key provision of the proposed legislation defines “political beliefs” to include “only” those beliefs of an individual “expressed outside the workplace and outside the course and scope of the individual’s employment.”  The proposed legislation, if passed, would modify the Texas Labor Code by making “political beliefs” a protected class, alongside “race, color, disability, religion, sex, national origin, or age.”  Tex. Lab. Code § 21.051.  You may read the proposed text of the legislation here.

Previously on the Work Knowledge Blog, we outlined some issues for employers to consider when it comes to politics in the workplace, especially during or immediately following… Continue Reading