The Federal government has entered its 12th day of partial shutdown, making it the fourth longest in American history to date. But, not all government departments are affected, and the Department of Labor is one that is not. The DOL is already fully funded for 2019, so the current stalemate between Congress and the President does not affect its resources.
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.
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.
The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”). In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review. This conclusion was fairly uncontroversial. Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard. The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.
On Monday, September 19, 2016, the Seattle City Council approved an ordinance (C.B. 118765) designed to bring more stability to the schedules of retail and food service industry workers, who often experience last-minute scheduling changes, loss of paid hours, and back-to-back shifts. The law, which was developed during a series of meetings between the City, business owners and worker advocates, will be codified in Chapter 14.22 of the Seattle Municipal Code and will take effect on July 1, 2017.
Several new and expanded paid family leave programs signed into law this month present employers with administrative challenges and concerns about business productivity.
California’s Paid Family Leave (“PFL”) program, which took effect in 2004, was the first of its kind in the nation. Funded by employee contributions to the State Disability Insurance program, and administered through that program, PFL in California provides employees with partial wage replacement (currently 55%, up to a weekly maximum of $1,104 in 2015) for a period of up to six (6) weeks in order to bond with a new child, or to care for a parent, child, spouse or domestic partner with a serious health condition. This wage-replacement program does not guarantee job protection, so normally it is taken concurrently with job-protected leave under the federal Family and Medical Leave Act (“FMLA”) or its California analog, the California Family Rights Act.
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.
The Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures which require all EEOC offices to release copies of an Employer’s entire position statement, together with all non-confidential documents submitted in support of the position statement, to an Employee who has filed a discrimination charge, or his or her representative (including attorneys). These procedures apply to all position statements requested after January 1, 2016. Previously, such disclosures were made in the discretion of the particular field offices or investigators, and practices were inconsistent. As often as not, EEOC investigators might summarize the Employer’s evidence and arguments for the Employee, in order to solicit the latter’s response.
On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.