A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

Continue Reading OSHA Clarifies Stance on Anti-Retaliation Measures to the Relief of Employers

In May 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule to “Improve Tracking of Workplace Injuries and Illnesses, “ which requires employers to electronically submit their injury and illness records to OSHA.  Specifically, establishments with 250 or more employees must annually submit their Forms 300, 300A, and 301.  And, establishments with 20 to 249 employees must annually submit their Form 300A.  Prior to this rule, most employers had no obligation to submit their illness/injury logs to OSHA.  This rule has been controversial, as OSHA intends to post the records, subjecting employers to increased scrutiny by investors, business partners, regulators, and the public at large.  Moreover, many employers are skeptical that OSHA will appropriately safeguard individualized confidential information from public disclosure.

Continue Reading OSHA Issues Proposed Rule Regarding Electronic Submission Requirements

The effects of the regulatory reform initiatives of the Trump Administration are beginning to be felt at the Occupational Safety and Health Administration (OSHA) with the formal action by OSHA to finalize withdrawal of the “Volks Rule” regulation. On May 3, 2017, in response to a CRA resolution of disapproval, OSHA published a final rule removing amendments to OSHA’s recordkeeping regulations from the Code of Federal Regulations.

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On March 25, 2016, OSHA published a final rule which significantly reduces the permissible limits of silica dust to which workers can be exposed.  The rule will take effect 90 days after publication, and will be codified at 29 CFR Parts 1910, 1915, and 1926.

Continue Reading New OSHA Rule Significantly Reduces Permissible Limits for Exposure to Silica Dust

More and more employers are faced with the following question — can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.

Continue Reading Can a Transgender Employee Use the Restroom Associated With His or Her Gender Identity?

On Tuesday, the United States Supreme Court held that the whistleblower protections that apply to employees of publicly traded companies under Section 1514A of the Sarbanes-Oxley Act, also  extend to employees of private contractors and subcontractors that serve those public companies.

Continue Reading Supreme Court Holds Sarbanes-Oxley Whistleblower Provision Covers Employees of Private Contractors

The government shutdown may have ended six weeks ago, but its impact may be felt for months to come.  The Office of Management and Budget recently released a report entitled “Impacts and Costs of the October 2013 Federal Government Shutdown,” which details the costs of the government shutdown and the impact it had on government workers, which in turn impacts the private sector workplace as well.

Continue Reading Government Shutdown Data Shows Impact On Labor And Employment Law Enforcement

Federal employees awoke Tuesday morning to discover that the government had shut down for the first time in 17 years after Congress failed to agree on a new budget or extend the current one in a session that went past midnight on Monday.  As a result, more than 800,000 workers across the country have been immediately furloughed, while approximately a million more will report to work without pay to perform operations that have been designated as essential. The Department of Labor and related agencies, including the National Labor Relations Board and Equal Employment Opportunity Commission, will maintain only a skeletal staff during the shutdown to perform tasks “involving the safety of human life or protection of property.”  These offices will continue to accept and docket administrative filings, but all other activities will be suspended until a budget or continuing resolution is passed by Congress.  As such, employers will enjoy a brief respite from the pressure of government investigations and inspections.

Continue Reading Federal Agencies Close As Shutdown Begins

In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool. 

Continue Reading New OSHA Guidance Authorizes Union Participation During Inspections

Last week, the U.S. Court of Appeals for the D.C. Circuit significantly limited the time period in which employers may be cited for recordkeeping violations under the Occupational Safety and Health Act (“the Act”) in AKM LLC dba Volks Constructors v. Secretary of Labor, Civ. No. 11-1106.  The Court ruled that such violations must be cited within six months of their occurrence, marking a considerable decrease from the previous practice of citing violations from up to five years prior–the period of time during which injury and illness logs must be retained under the Act.  In doing so, the federal appeals court rejected the independent Occupational Safety and Health Review Commission’s decision upholding an enforcement action against Volks Constructors and the Occupational Safety and Health Agency’s (“OSHA”) argument that Volks’s failure to keep injury and illness logs constituted continuing violations.

Continue Reading D.C. Circuit Rejects Continuing-Violation Theory in OSHA Recordkeeping Cases