Tag: OSHA

Recent OSHA Update Targets Restaurant Industry

Occupational Safety and Health Administration (OSHA) has recently updated its COVID-19 response plan. Last year, OSHA focused much of its COVID-19 related attention on healthcare, elderly care, and prisons. This new Updated Interim Enforcement Response Plan for COVID-19 and National Emphasis Program — Coronavirus Disease 2019 (COVID-19) guidance shifts its focus to other industries where OSHA feels there could be spread of COVID-19. As part of the guidance, OSHA specifically targeted full-service and limited-service restaurants for inspections.

Restaurants should be prepared for on-site or virtual OSHA inspections. To prepare, restaurants should:

  • Ensure all OSHA recordkeeping (OSHA 300, 300A, and 301s) is in order and up to date.
  • Ensure any contact tracing for COVID-19 illness is properly documented.
  • Ensure a COVID-19 response plan is documented and in place-include relevant Federal, state and local guidance.
  • Ensure compliance with OSHA standards, specifically Personal Protective Equipment and Blood Borne Pathogens.
  • Ensure employees are trained on COVID-19 related hazards, reporting of COVID-19 symptoms, prevention of COVID-19, and document this training.
  • Ensure employees are trained that they will not be retaliated against for raising concerns regarding safety, specifically COVID-19 related safety.

Note that we are still waiting for OSHA’s Emergency Temporary Standard to be issued. OSHA has provided its proposed standard to the White House where it is currently being reviewed. Once that is issued, there will likely be more requirements for all industries with respect to COVID-19 related employee safety and health.

This article was written by Jane H. Heidingsfelder at Jones Walker law firm. For more information on OSHA guidance, please visit our Labor and Employment news page.

Are Adverse Reactions to COVID-19 Shots Recordable to OSHA? It Depends.

The Occupational Safety and Health Administration (OSHA) has determined that it will consider an adverse reaction to the COVID-19 vaccine “work-related” recordable illnesses if an employee is required to take the vaccine as a condition of employment.

In its online Frequently Asked Questions (FAQs) about COVID-19, on April 20, 2021, the agency stated that an adverse reaction to the vaccine would be recordable if the reaction meets the definition of a recordable injury or illness:

  1. It is work-related, which OSHA presumes if the vaccine is mandated by the employer;
  2. It is a new case; and
  3. The illness meets at least one of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, or medical treatment beyond first aid).

OSHA distinguishes between mandatory vaccines and those that are recommended by an employer. If the vaccine is truly voluntary, the agency does not require the employer to record an adverse reaction on the employer’s OSHA 300 log. On the other hand, if the employer mandates the vaccine, the employer must record it if it otherwise meets recording criteria. OSHA states that this current position on vaccines is an exercise of its enforcement discretion, but it means the agency could change course in the future.

The FAQs detail factors OSHA will consider in determining whether an employee’s vaccination is truly voluntary. Primarily, the choice to accept or reject the vaccine cannot affect the employee’s employment or professional advancement and they cannot suffer any negative repercussions from choosing not to receive the vaccine. On the other hand, if employees are not free to make this decision and would face adverse action if they do not take it (e.g., the employee cannot return to work or is terminated for refusing vaccination), then OSHA would not consider it as merely recommended. In that case, an employer would need to follow the guidance in terms of assessing recordability for any adverse reactions to the vaccine.

OSHA clarifies situations in which employers recommend but do not require vaccination. For example, the agency will view a vaccination as voluntary and recommended even if the employer makes the vaccine available at work, if the employer makes arrangements for employees to get the vaccine at an offsite location (e.g., pharmacy, hospital, or local health department), or if the employer offers the vaccine as part of a voluntary health and wellness program at the workplace.

Unfortunately, the FAQs do not address employer incentive programs to encourage employee vaccination, such as offering financial incentives, eligibility for raffle drawings to win prizes, or paid time off to receive or recover from the vaccine. At times, OSHA has viewed incentive plans as potentially punitive to employees who miss out on benefits offered to others. At this point, it is unclear what enforcement position OSHA will take in these situations. Interestingly, Chicago enacted an ordinance to protect employees from adverse employment actions if they take and recover from vaccines during working hours.

As businesses continue to reopen and employees return to work, employers will have to decide whether to mandate or simply encourage vaccination for its workforce. Based on OSHA’s FAQs, employers should assess whether they are requiring vaccination or whether they are making it truly voluntary for their employees, as this will determine whether they will need to record adverse reactions on OSHA 300 logs.

Jackson Lewis P.C. © 2021

ARTICLE BY Courtney M. Malveaux of Jackson Lewis P.C.
For more articles on COVID-19 shots, visit the NLR

Coronavirus News section.

OSHA Issues Updated COVID-19 Guidance in Compliance with President Biden’s Executive Order

As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021.  As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard.  However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

  • Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator.  Many states did not require this and OSHA did not previously recommend employers purchase masks.
  • Provide a COVID-19 vaccine at no cost to eligible employees.
  • Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
  • Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
  • Provide guidance on screening and testing.
  • Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration.  James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis.  Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard.  While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

Jackson Lewis P.C. © 2020

ARTICLE BY Raymond Perez, II and Mary L. Bradley of Jackson Lewis P.C.
For more, visit the NLR Labor & Employment

COVID-19 Whistleblower Protections: Few Options for Workers Reporting Unsafe Working Conditions

The United States has been rocked by the COVID-19 pandemic in innumerable ways and it has had profound and ongoing impacts on workers. One of the most vexing problems arising from COVID-19 has been protecting workers who object to employers that are failing to implement meaningful safety precautions to protect their workers during the pandemic. As just one of many examples, an Amazon employee was fired after he opposed the company’s failure to meaningfully protect warehouse employees who had potentially been exposed to the coronavirus. This article will examine our failures in addressing this problem through meaningful federal action and highlight instances where local legislators have passed laws to protect workers who find themselves facing this predicament.

The Deficiencies of Federal Law to Protect Workers During the Coronavirus Crisis

The primary federal law requiring a safe working environment is the Occupational Safety and Health Act (“OSH Act”). Section 11(c) of the OSH Act prohibits employers from discharging or discriminating against an employee because the employee exercised any rights under the Act, including the right to raise health or safety complaints. 29 U.S.C. § 660(c). The OSH Act theoretically protects an employee who refuses to work based on unsafe working conditions, although the requirements for a protected work refusal are stringent.

Unfortunately, the OSH Act does not effectively protect workers in general, much less in the face of a burgeoning pandemic. The Act does not have a private right of action, so employees who suffer retaliation for reporting unsafe working conditions cannot sue in court. Instead, Section 11(c) allows employees to file a complaint with the Occupational Safety and Health Administration (“OSHA”) and request that OSHA protect them. Thus, government officials ultimately decide what to do with the OSH Act complaint; if they fail to protect an employee, that employee has no other recourse under the statute. In addition, the OSH Act has a 30-day statute of limitations—the shortest of any federal anti-retaliation statute. Finally, the strict requirements governing what constitutes a protected refusal to work will leave many employees in the cold. OSHA officials have acknowledged the weakness of the OSH Act protections. In 2010, then-Deputy Assistant Secretary for Occupational Safety and Health, Jordan Barab, testified before Congress that Section 11(c)’s lack of a private right of action and statutory right of appeal were “[n]otable weaknesses” in the law. Mr. Barab also lamented the OSH Act’s “inadequate time for employees to file complaints.”

Several states have their own version of the OSH Act, protecting employees who raise concerns about workplace health and safety. Like the federal OSH Act, however, many of these state laws do not contain private rights of action. See, e.g., D.C. Code § 32-1117 (no private right of action); Md. Code, Labor & Empl. § 5-604 (same); but see Va. Code § 40.1-51.2:2 (providing private right of action and a 60-day limitations period for filing a complaint).

Proposed Legislation to Protect Whistleblowers

The Coronavirus Oversight and Recovery Ethics Act (“CORE Act”) put in place meaningful protections against retaliation for individuals who report waste, fraud, and abuse related to government funds that were distributed to combat the COVID-19 pandemic. Like other recent whistleblower protection legislation, it is primarily enforced through the Department of Labor but permits whistleblowers to “kick out” their claims into federal court. Further, language in the bill nullifies the effectiveness of pre-dispute mandatory arbitration provisions with respect to claims asserted under the law. In many ways, it is a model piece of whistleblower protection legislation.

One significant omission from the CORE Act, however, is language amending the OSH Act or otherwise granting meaningful protections to whistleblowers who report workplace health and safety concerns related to COVID-19. Thus, nothing in the bill purports to protect an individual who refuses to come to work, or opposes her employer’s practices, because her employer has failed to take sufficient steps to mitigate COVID-19-related risk to employee health. In most of the country, employees in that situation are left with the OSH Act as their primary recourse for protection against retaliation.

Given the clear deficiencies in the OSH Act’s protections of whistleblowers concerned about workplace safety, whistleblower advocacy organizations like the Project on Government Oversight (“POGO”) have pushed for Congress to pass legislation that would, among other things, “prohibit retaliation against essential workers making disclosures related to worker or public health and safety during the pandemic.” On June 15, 2020, in response to calls from groups like POGO, Senator Kamala Harris and Representatives Jackie Speier and Jamie Raskin introduced the COVID-19 Whistleblower Protection Actto expand the whistleblower protections of the CORE Act.

Protecting Whistleblowers at the Local Level

Given the lack of federal action to address this problem, some municipalities have passed legislation specifically designed to protect employees who report COVID-19-related workplace safety concerns. For example, Mayor Kenney of Philadelphia recently signed into law Bill No. 200328, which requires employers to “comply with all aspects of public health orders addressing safe workplace practices to mitigate risks” related to COVID-19. The bill further states that “[n]o employer shall take any adverse employment or other action against an employee” who refuses to work in conditions that do not comply with public safety guidelines, and that “no employer shall take any adverse employment or other action against any employee for making a protected disclosure.” A “protected disclosure” is defined as a “good faith communication” disclosing information “that may evidence a violation of a public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation.” The legislation includes a private right of action and permits awards to successful litigants including reinstatement, back pay, compensatory damages, and liquidated damages “of $100 to $1000 on behalf of the City for each day in which a violation occurs.”

In late May, the City of Chicago enacted a bill that contained slightly narrower but still powerful protections. In the bill, the City of Chicago prohibited employers from retaliating against employees for complying with public health orders relating to COVID-19 issued by the City or the State or for following COVID-19-related quarantine instructions from a treating health care provider. The protections extend to employees who are caring for an individual subject to such a quarantine. The bill includes a remarkable damages provision entitling successful claimants to liquidated damages “equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place.”

These actions by municipalities are meaningful and offer critical protections to citizens living in those cities. At the same time, the need for this local legislation highlights the glaring absence of meaningful protections for workers in the rest of the country. It seems that every week we hear more horror stories about conditions in which workers are forced to work during this pandemic, lest they risk losing their jobs in the midst of a devastating economic downturn. The weaknesses in the OSH Act and the absence of even proposed federal legislation that would fill this critical gap in protection is a moral failure.

Copyright Katz, Marshall & Banks, LLP

For more on COVID-19 related whistleblowing, see the National Law Review Coronavirus News section.

A Virtual Discussion Series | Part I: Labor, Employment and OSHA Developments and Strategies for Companies and PE Investors Navigating COVID-19 Hurdles

In this webinar, Partners in the Private Equity/Mergers and Acquisitions Practice Group, Heather Rahilly and Andrew Ritter, moderate a discussion with Partners in the Labor, Employment and OSHA Practice Group, Michael Miller and Lawrence Peikes, to discuss developments and strategies in labor, employment and OSHA for companies and investors navigating COVID-19 hurdles.

Key takeaways from this webinar include:

  • New developments and trends in labor and employment laws
  • Summary of current changes to OSHA regulations and standards
  • New litigation and regulatory concerns and how to mitigate risk
  • How legal developments in OSHA, labor and employment may affect current and future deal practice

© 1998-2020 Wiggin and Dana LLP

For more on OSHA labor regulation, see the National Law Review Labor & Employment law section.

OSHA Issues New COVID-19 Alert to Restaurants & Beverage Vendors

On May 1, the Occupational Safety and Health Administration (OSHA) issued a new safety alert for restaurant and food and beverage businesses operating during the pandemic. In the alert, OSHA suggests that restaurants providing curbside and takeout service should reserve parking spaces near the front door for pickup, avoid handing food off directly when possible, and allow workers to wear masks.

OSHA also urged businesses to display signs detailing their services such as pickup instructions and hours; take “sensible social distancing” measures such as moving workstations or installing plexiglass partitions; provide alcohol-based hand rubs and a place to wash hands; train workers in proper hygiene practices and the use of workplace controls; and encourage workers to report safety and health concerns.

This alert is the latest in a series of industry-specific documents OSHA has issued offering recommendations on ways to protect workers and patrons during the COVID-19 pandemic.

The agency has made the tips available in a one-page poster employers can display in the workplace.

© 2020 Jones Walker LLP

For more reopening regulations, see the National Law Review Coronavirus News section.

OSHA Issues Guidance on Preparing for COVID-19

1) OSHA has issued a comprehensive document “Guidance on Preparing Workplaces for COVID-19.”

That Guidance categorizes employers under “Very High Risk,” “High Risk,” “Medium Risk,” and “Lower Risk,” categories.  The employer should first determine under which category the employer falls.  Then the employer should further review the Guidance to determine which “engineering,” “administrative,” “work practice,” and “Personal Protective Equipment” (PPE) measures apply to their company and implement those measures, called “controls” by OSHA.  One control is the erection of physical barriers, such as plastic sheeting to cordon off certain areas from the free flow of air typically in the hallways.

2) Many employers wonder if coronavirus cases are recordable on their 300 logs. Coronavirus, COVID-19, is not an exception to the OSHA Recordkeeping rule.  Therefore, if the coronavirus, COVID-19, diagnosis is confirmed, is work related, and results in treatment beyond first aid, lost time, modified duty, or other recordable circumstance, then it is recordable, and needs to be recorded as an illness on the OSHA 300 log.  If a work-related COVID-19 case for an employee results in in-patient hospitalization, then it is reportable within 24 hours of that in-patient hospitalization to the OSHA Area Office or the national OSHA line.

3) The EEOC has issued guidance that employers in this situation are allowed to take the temperatures of incoming employees.  Typically taking the temperature of an employee is considered a medical examination that must be justified by business necessity.  In the current pandemic situation, employers who test all employees coming to work each day have the business necessity of the pandemic to justify that examination.  Employers should take the temperature of all employees if that will be the employer’s practice, a control to protect other employees in the manufacturing plant or construction site.

4) Also, when using respiratory protection as PPE, the employer must either implement a respiratory protection program with mandatory fit testing, medical evaluation, training on usage and storage, and sufficient facilities for cleaning and storage.  Or, if the employer considers the program voluntary, the employer must provide each employee with Appendix D to inform the employees of the uses and limitations of certain types of masks.  OSHA has issued temporary guidance during the pandemic to relax the annual fit testing requirement, but the temporary guidance requires the employer to follow stringent measures, such as:

  • Perform initial fit tests for each HCP with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19 (initial fit testing is essential to determine if the respirator properly fits the worker and is capable of providing the expected level of protection), and give workers training on the suspension of annual fit testing to preserve respirators, and then explain the importance of the user seal check, then nevertheless to conduct a fit test if there are visual changes in the employee’s physical condition to affect the seal, and other training.
  • Click here to see the complete guidance before seeking to employ any such suspension, rigorously follow the criteria listed in the publication.

OSHA is out inspecting workplaces and issuing citations.  Be very careful about the use of respirators by your workforce without having the proper program, or, in a voluntary situation, providing the Appendix D.

© Steptoe & Johnson PLLC. All Rights Reserved.

More governmental agency guidance on COVID-19 on the National Law Review Coronavirus News page.

Don’t Slip Up: When Are California Employers Required to Pay for Employees’ Shoes?

A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.

An employer’s failure to properly pay for or reimburse for the shoes it requires its employees to wear as a condition of employment can expose the employer to civil liability and/or regulatory enforcement by California’s Division of Occupational Safety and Health (Cal/OSHA). Indeed, there has been a dramatic uptick in both civil class action claims against employers and regulatory enforcement by Cal/OSHA alleging failure to pay for or reimburse for the cost of shoes required as a condition of employment. These difficult scenarios range from generic waterproof shoes requirements in food processing plants to nonspecific requirements for work boots to be worn on construction sites.

In Townley v. BJ’s Restaurants, Inc., No. C086672 (June 4, 2019), the California Court of Appeal ruled that under California Labor Code section 2802 and the Industrial Welfare Commission’s Wage Order No. 5 applicable to the restaurant industry, BJ’s Restaurants was not required to pay for the cost of the slip-resistant shoes that it required its employees to wear as a condition of employment. In so holding, the court relied on Wage Order No. 5, which provides that a restaurant employer must pay for its employees’ work apparel only if it is a “uniform” or if it qualifies as certain protective apparel regulated by Cal/OSHA or the federal Occupational Safety and Health Administration (OSHA).

Section 2802 provides that employers are required to reimburse their employees for “necessary expenditures … incurred by the employee[s] in direct consequence of the discharge of [their] duties.” Thus, if slip-resistant shoes were part of a uniform or apparel regulated by Cal/OSHA or OSHA, then pursuant to section 2802, BJ’s Restaurants would have been required to reimburse its employees for the cost of the shoes. The court relied on a California Division of Labor Standards Enforcement (DLSE) opinion letter to find that the plaintiff had not demonstrated that the slip-resistant shoes constituted a “uniform” within the meaning of the Wage Order No. 5:

The definition and [DLSE] enforcement policy is sufficiently flexible to allow the employer to specify basic wardrobe items which are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified design, without requiring the employer to furnish such items. If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation the emplolyee [sic] may not be required to pay for it.

The court found that because the plaintiff did not argue that the slip-resistant shoes were part of a “uniform” or were not usual and generally usable in the restaurant occupation, the employer was not required to reimburse the plaintiff for the slip-resistant shoes under Labor Code section 2802.

However, even though the court held as such, given that the plaintiff had not attempted to characterize the shoes as apparel regulated by Cal/OSHA or OSHA, the court did not reach the issue of whether the employer could be obligated to pay for the slip-resistant shoes under Cal/OSHA or OSHA. This unanswered question is bad news for California employers, as it is unsettled whether an employer is required to pay for nonspecialty protective shoes required as a condition of employment, such as generic work boots. It remains unsettled because there is a conflict between Cal/OSHA and OSHA regulations regarding generic nonspecialty protective shoes.

Shoes as Personal Protective Equipment

Under federal OSHA regulations, which were amended in 2008, an employer is required to provide personal protective equipment, including certain specialty protective shoes, at no cost to the employee. However, the federal OSHA regulations also contain an exemption that does not require the employer to pay for generic nonspecialty shoes, such as steel-toe boots, which the employer permits to be worn off the jobsite. Further, a 2011 OSHA directive interpreted this regulation as not requiring employers to “pay for non-specialty shoes that offer some slip-resistant characteristics, but are otherwise ordinary clothing in nature.”

Consistent with the federal OSHA regulations, Cal/OSHA regulations provide that “[a]ppropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.” Also consistent with federal law, California law generally provides that, if protective equipment is required by Cal/OSHA, the employer is responsible for the cost of the protective equipment.

However, California law significantly diverges from federal law when it comes to nonspecialty safety shoes that can be worn off the jobsite. Under Cal/OSHA, there is no corresponding provision that specifically exempts employers from paying for the cost of generic nonspecialty safety shoes, such as steel-toe boots. Indeed, in 2012, the California Occupational Safety and Health Standards Board proposed the adoption of a regulation similar to the federal regulation, which exempted employers from paying for the cost of nonspecialty safety footwear. The proposed regulation initially contained exceptions despite the California Occupational Safety and Health Standards Board’s having noted that “existing case law requiring employers to pay for [personal protective equipment] is more effective than the federal standard, because California enforces the employer’s duty to pay for safety devices and safeguards without the exceptions provided in the federal standard.” The regulation was ultimately not adopted. Consistent therewith, Cal/OSHA has taken the stance that if an employer requires shoes for safety purposes, whether specialty or nonspecialty, the employer must pay for the cost of those shoes.

In contrast, California employers have argued that the federal OSHA regulation exempting employers from paying for the cost of generic nonspecialty safety shoes should control in California. Indeed, in Townley, the trial court originally granted BJ’s Restaurant’s motion for summary judgment finding that the federal OSHA regulation exempting employers from paying for the cost of nonspecialty safety shoes controlled in California because California did not adopt a Cal/OSHA regulation requiring employers to reimburse employees for the cost of such shoes—and thus, BJ’s Restaurants was not required to reimburse for the cost of the slip-resistant shoe. However, as noted above, the California Court of Appeal did not reach the issue of the applicability of Cal/OSHA and OSHA to these types of situations.

Key Takeaways

What does this all mean for California employers? The short answer is that, if an employer requires employees to wear shoes with safety characteristics as a condition of employment, it may want to assess whether it is required to reimburse employees for the cost of the shoes. An employer’s failure to pay for or reimburse an employee for the cost of shoes could expose the employer to potential civil claims or regulatory enforcement by Cal/OSHA.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on employer safety requirements, see the National Law Review Labor & Employment page.

But I’m in HR – What Do You Mean I Can Go to Jail?

Wage and hour laws.  Child labor laws.  OSHA laws.  Immigration laws.  When employers do not comply with these types of employment laws, civil charges and lawsuits are not the only things that can happen.  In what may come as an unwelcome surprise to employers, and to Human Resources, in particular, these laws have criminal penalties embedded in them too.

For example, willful violations of the Fair Labor Standards Act (FLSA) – the federal wage and hour law that also contains certain child labor provisions – may be prosecuted criminally, with violators subject to potential fines of up to $10,000.  Various states also have their own wage and hour laws, and many of them include criminal sanctions.

Although the Department of Justice and administrative agencies enforce laws like the FLSA less or more vigorously, depending on who is president, a case from 2013, during the Obama administration, is instructive.  In that FLSA matter, a company and its owner, plant manager, and office manager were all convicted of various felony counts.  The facts were extreme, including that the employer had a history of FLSA violations, submitted false payment evidence to the Department of Labor during its investigation, demanded kickbacks from workers while continuing to fail to pay overtime, and kept a second set of time records hidden from investigators.  These facts resulted in criminal convictions for the company and three of its management individuals.

The Department of Justice also enforces certain immigration laws that carry potential criminal penalties for employers.  These laws are especially noteworthy in today’s atmosphere of heightened immigration enforcement.  Employers who unlawfully employ persons who are not authorized to work in the United States could be subject to criminal prosecution.  Federal and state OSHA laws also contain criminal in addition to civil penalty provisions.

We know that Human Resources professionals can sometimes have a hard time convincing other leaders in an organization to listen to their suggestions.  It can be very frustrating, for example, when HR knows that certain employment policies need to be revised or certain payment methods may not comply with legal requirements, and yet other members of the management team will not make the changes.

One way HR can help guide managers who need to make decisions about certain employment policies – and to get their attention – is to point out that not only can failure to follow certain laws result in expensive civil lawsuits; but sometimes they can also result in criminal prosecution.  Though rare, these prosecutions and convictions do happen – something clearly all HR and all managers want to avoid.

Are you likely to go to jail as an HR professional under these laws?  Not likely.  Nonetheless, HR professionals should be aware of the possibilities and be prepared to discuss them when educating management.

© 2019 Foley & Lardner LLP
For more on employment matters, see the National Law Review Labor & Employment page.

Trump’s Actual Impact on OSHA

In November, we attempted to look into the crystal ball to see what potential impact the new Trump administration could have on the Occupational Health and Safety Administration (OSHA). Here are some of results so far, which on the whole, are favorable to employers who suffered under the “regulation by shaming” mantra of past Assistant Secretary of Labor David Michaels.

  • Budget Cuts – As predicted, on May 5, President Trump signed a spending bill that cuts the labor department’s discretionary spending budget by $83 million. This could limit some of OSHA’s enforcement efforts.

  • Recordkeeping as a Continuing Violation – The Volks rule, which was enacted by OSHA last December as a last minute rule in response to a loss, suffered through an adverse decision in the federal courts. The new rule established that an employer has a continuing duty to create accurate records of work-related employee injuries and illnesses. This effectively changed the statute of limitations for recordkeeping violations from six months to five years and six months. On April 3, President Trump signed a joint congressional resolution under the Congressional Review Act that overturned this rule. The law is now back to the original intent of Congress that the statute of limitations for all OSHA citations is six months. This is a significant win for employers who can focus their time on current substantive safety issues instead of reviewing documents for accuracy from up to five years ago.

  • Union Representatives in OSHA Inspections of Non-union Facilities – As mentioned in the prior post, I predicted that interpretation letters could change with the new appointment of the secretary of labor. One of the most controversial of these letters was the 2013 Fairfax memo regarding walkaround rights during an OSHA inspection. The memo stated that during an OSHA inspection of a non-union facility, a union representative could be designated as the employees’ “personal representative” even without representation election or voluntary recognition of the union as the exclusive representative of the employees. This was being challenged in court and then OSHA rescinded the Fairfax memo and agreed to revise the Field Operations Manual (FOM) for its inspectors to reflect the same change on April 25, 2017. The lawsuit was then dismissed as moot since OSHA rescinded the controversial memo. The letter was viewed as an overstep by OSHA into the area of labor relations covered by the NLRB, since it appeared to be motivated by giving unions more access to non-union employers for organization efforts rather than to assist in a safety inspection. This is another win for employers.

So far, the progress has been good for employers. We will just have to wait and see how other issues develop, including the electronic recordkeeping rule and non-discrimination standard (which limits blanket post-accident drug tests), which is being challenged in two separate lawsuits, as well as the silica standard, which is being challenged in court. The DOL has to decide how strongly it will defend these rules in court which will have a significant impact on how the courts may rule. Stay tuned for updates.