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.
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…
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.
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.
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.
On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”). Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.
Most of us have sent a text while driving, and we all know that this practice can be dangerous. This is as true on the rural roads of America, as it is on the busiest of freeways. It is no surprise, with all of our technological distractions, that motor vehicle crashes are consistently the leading cause of worker fatalities. It is also no surprise that OSHA has taken notice of this issue and is taking action. OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees.
Continue Reading Employee Texting While Driving May Lead To Employer Fines
The Obama Administration has addressed labor and employment issues aggressively over the past two years. The Department of Labor, under President Obama’s direction, has articulated its “Plan/Prevent/Protect” agenda and its focus on openness and transparency in labor practices. As a result of the steps taken by the Obama Administration in 2010, the new Republican-dominated Congress may have to decide a number of regulatory and legislative measures that will directly affect labor and employment law in 2011. The following is a list of proposed regulations and legislation that employers and their attorneys should watch this year:
Continue Reading Watch List 2011 – Key Labor and Employment Regulations And Legislation
Recently, there has been a large amount of public commentary regarding the dangers of distracted driving, including texting while driving. The Occupational Safety and Health Administration (OSHA), which regulates workplace safety, has now officially declared texting while driving to be a workplace hazard and an OSHA violation. In its recent open letter to employers, OSHA explained that:
It is [the employer’s] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving. Companies are in violation of [OSHA] if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.
As a recent decision by the U.S. Court of Appeals for the Fourth Circuit makes clear, the fact that an employer prevailed against an employee’s Sarbanes-Oxley claim in an administrative proceeding cannot be used to bar a new trial of the claim in federal court. The U.S. District Court for the District of Maryland dismissed a former employee’s SOX lawsuit on the ground that it was precluded by an administrative law judge’s granting of the employer’s motion for summary decision. The Court of Appeals, in a ruling of first impression, held that the lower court erred and vacated its dismissal in Stone v. Instrumentation Lab Co., 4th Cir., No. 08-1970, 12/31/09.