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Top Ten Most Frequently Cited OSHA Standards for FY2014

Here is a little top ten list fun on this pre-Valentine's Day Thursday.  I spent way too much time earlier this week helping my 4th grade daughter put together her Valentine's Day box for school and I'm sure several of these standards were violated in my kitchen.

Without further ado here is the list . . .  

10. electrical systems design (good news here for our project -- it was super low tech so no chance of a violation here)

9.  machine guarding (the scissors I used to cut the shoe box should have been guarded or at least my fingers believe that to be true)

8.  electrical wiring methods

7.  ladders (I'm sure my small two step ladder/stool I used to get to the top shelves in the pantry for construction paper violate something here)

6.  lockout/tagout

5.  powered industrial trucks (thankfully we didn't need a lift to get the box out the door for deliver to school)

4.  respiratory protection (the smell of glue sticks and markers in the air surely required some form of protection)

3.  scaffolding

2.  hazard communication (anytime I work on an artistic related project somebody should be warning the rest of the house)

and the number one most cited standard . . .

1.  fall protection (thankfully the table top isn't high enough to qualify as a fall hazard although I did drop quite a few things if that counts)

For all of you that have some safety responsibilities, this list is a good starting point for thinking about the types of issues you might have present in your workplace. 

Deferred Action Program Expansion Kicks Off

The first of the expanded immigration benefits granted by President Obama's executive action is slated to begin processing applications next week.  The Deferred Action for Childhood Arrivals (DACA) program in its new expanded form will provide benefits to a wider range of potential applicants.  This expansion is likely to lead to a new wave of individuals seeking deferred action related benefits which includes a work authorization document to allow these individuals to work legally in the U.S.  This is likely to lead to another wave of your employees receiving new work authorization documents later this year. 

As a reminder, DACA is for those individuals that entered the U.S. prior to reaching age 16.  The DACA program has been modified to allow individuals of any age to apply so long as they meet the requirement of having entered the U.S. prior to age 16 and have lived in the U.S. continuously since January 1, 2010 (the prior version of the program required continuous residence since June 15, 2007).

Governor Rescinds Anti-Discrimination Protection for LGBT State Employees

On February 10, 2015, Kansas Governor Sam Brownback rescinded an executive order that provided persons employed by the State of Kansas protection from discrimination on the basis of sexual orientation and sexual identity. The executive order was originally signed in 2007 by then-Governor Kathleen Sebelius. Brownback stated that any action to create additional protected classifications should be done by the legislature rather than by executive order. The rescinded executive order was replaced with one that Brownback says “reaffirms the commitment of the State of Kansas to employment practices which do not discriminate based on race, color, gender, religion, national origin, ancestry or age.”


No More Inference of Contractual Right to Lifetime Retiree Health Benefits

The Supreme Court recently answered an important question that has lingered over retiree health benefits for years. If a contract gives retirees a right to health benefits but doesn't specify whether those benefits may be amended or terminated, can they ever be modified or taken away? The Court didn't exactly say they could be changed, but it opened the door a little wider to that possibility.

The Yard-Man Inference. A prior case from a federal appeals court (the Yard-Man case) said that, if retiree health benefits were collectively bargained but the collective-bargaining agreement (CBA) didn't specify whether they could be modified, there was a "presumption" or "inference" that the parties intended for those benefits to last for life, without modification. It didn't matter if the CBA itself expired at some point. The right to unmodified benefits was deemed to continue.

This created a problem for employers who had agreed to provide retiree health benefits at a time when the cost of those benefits wasn't a big concern, only to find out later that, notwithstanding rising health-care costs, they couldn't pass on any greater share of those costs to the retirees, much less take away the benefits altogether.

Placing a Thumb on the Scale. The Supreme Court rejected this so-called Yard-Man presumption, saying, in effect, that it went too far in making up contract terms that weren't really part of the deal. "Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.      Continue Reading...

OFCCP Proposes Overhaul of Sex-Discrimination Regulations

The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP), which regulates companies that contract or sub-contract to do business with the federal government, issued proposed rules last week that would replace the existing sex-discrimination guidelines for contractors. The proposed rules purport to account for changes in sex-discrimination laws that have occurred since the rules were first adopted in 1970 and to address current workplace issues.

Among other changes, the proposed regulations: 

·         Shift emphasis from overt discriminatory practices that no longer exist (such as gender-segregated job advertisements or “male-only” hiring policies) to more subtle forms of sex-based discrimination, including sexual harassment, sex-based job segregation and classification, and discrimination based on gender-based stereotypes related to family caretaking responsibilities or gender norms.
·         Expand protections to pregnant applicants and employees, consistent with the 1978 Pregnancy Discrimination Act, by, among other things, prohibiting employers from forcing pregnant employees to take leave or limiting their job duties and by obligating employers to provide pregnant employees reasonable accommodations and, in some situations, health or disability insurance.
·         Clarify that harassment or discrimination based on gender identity constitutes unlawful sex-discrimination.
·         Broadly define and explicitly prohibit sex-discrimination in compensation and fringe benefits.
Interested parties have until March 31, 2015 to comment on      Continue Reading...
"Like a Girl" Superbowl Commercial

During last night's Superbowl, the P&G commercial "Like a Girl" caught my attention.  It was an interesting play on how the phrase "Like a Girl" somehow represents doing a task poorly or as the commercial shows us in a not so athletic way.  From an employment law standpoint, the idea that "Like a Girl" represents a weak or poorly performed action is just the type of approach that will get employers into hot water.  So on this post-Superbowl Monday morning, give a thought to what "Like a Girl" might mean to you.  If you buy into the stereotypes portrayed in the commercial, you are likely to be exposing your company to liability at some point down the road.  As an HR professional, if you have managers/executives at your company that buy into the "Like a Girl" stereotype, its only a matter of time until those same managers/executives find themselves on the wrong side of a gender based discrimination claim or concern.  Now might be a good time to remind your management team of the perils of discrimination and your company's policies against the same. 


IRS Provides Limited Penalty Relief for Tax Credit Overpayments

Individuals who obtained premium tax credits to offset the cost of purchasing insurance through a public exchange during 2014 must reconcile those credits when they file their 2014 tax returns. If it turns out they received more credits than they were entitled to receive, they must pay back some or all of the excess.

Tax Problems. This repayment obligation could trigger a couple of tax problems for the individual. First, they may end up with a tax liability on their return when they were otherwise expecting a refund (or at least not expecting to pay anything). Second, they could owe a penalty for underpaying estimated taxes (not paying their tax liability soon enough).

Limited Penalty Relief. The IRS has provided penalty relief for 2015 (relating to the 2014 tax year) to address these two problems. However, the relief is limited to certain penalties associated with reconciliation of the premium tax credit. There is no relief for penalties associated with underpayments due to responsibility for the individual mandate penalty.

Late Payment Relief. The tax code imposes a delinquency penalty for late payment of taxes that are due. This penalty will be abated for 2014 for taxpayers who (1) are otherwise current with filing and payment obligations, (2) have a balance due for 2014 due to excess premium tax credits, and (3) report the excess tax credits on a timely filed (including extensions) 2014 tax return.

Estimated Tax Penalty Relief. The tax code also imposes a penalty for underpayment of estimated taxes. This penalty will be      Continue Reading...

Immigration Reform Update

Now that the State of the Union address is in the rear-view mirror, it's a good time to peek in on just where things are at with respect to immigration reform.  As you might recall, President Obama announced a series of changes he intended to implement by Executive Order in November of 2014 (read about them here.)  So just where are things with respect to all these changes?  The answer is a simple one -- UNDER CONSTRUCTION.  For those expecting immediate change, immigration reform has been a bit of a sore subject.  As you will remember, comprehensive immigration reform has been a topic of discussion throughout President Obama's presidency.  In fact, Congress was debating comprehensive immigration reform following the election cycle in 2012.  The key takeaway is that while immigration reform gets a lot of discussion and press, actual progress is hard to come by and slow to arrive.  With that said, deferred action related information is likely to arrive in February.  In addition, the new deferred action program targeted at parents of children born in the U.S. will likely arrive in the late spring or early summer (May/June).  What will be interesting to watch is how these upcoming executive changes will motivate Congress to act.  So while things are likely to remain quiet in early 2015, expect immigration reform to be a hot topic again as we move towards spring.  As always, stay tuned. 

DOL Continues to Add States to Employee Misclassification Initiative

With the addition of Wisconsin last week, the Department of Labor (DOL) now has 19 states participating in the collaborative effort to reduce the misclassification of employees as contractors.  The DOL's initiative is a concerted effort to investigate and pursue companies that misclassify employees as contractors to avoid various tax and/or benefit burdens.  Over the last three to four years, the initiative has resulted in a significant number of companies being investigated by the DOL (or a state partner) and the payment of significant back pay amounts to employees.  If your company makes use of independent contractors (contract labor), you should carefully review these arrangements to ensure they are truly contractors and not employees.  Correcting these issues before a government investigation is almost certain to be better for your company.  

Court Invalidates DOL Change to Companionship Exemption

Last week a federal judge invalidated the Department of Labor's (DOL) proposed change to the companionship exemption under the Fair Labor Standards Act.  The change in the rule was expected to cause the majority of home health workers to no longer be exempt and thus subject to the minimum wage and overtime rules.  At issue was how the DOL defined companionship in the rule.  The primary change at issue was eliminating the exemption for those home health care workers that spend more than 20% of their time on personal care related tasks.  These tasks include things like bathing, dressing, cooking, shopping, cleaning, etc.  In most cases, these tasks are a significant portion of what home health care workers do to assist their clients.  It is now in the DOL's court to decide whether to appeal the decision.  Stay tuned.

Termination Case Goes South

A recent decision in a Texas federal court case highlights for employers the dangers of a sloppy termination process.  The basic story is an employer terminated the employment of a 55 year old employee for having a poor attitude and poor work performance.  The employee's story differed in that he claims he met all requirements and his supervisor harassed him.  The parties ended up in litigation and through the discovery process the employer's termination process began to unravel.  The employer's basis for the termination came into doubt when the supervisory team could not identify who made the decision to terminate the employee.  Multiple supervisors pointed in different directions as to the identity of the person making the decision.  In addition, the employer failed to follow its own progressive discipline policy with respect to the employee.  These flaws in the termination process resulted in the court providing the employee the opportunity to present his case to the jury at a trial.  This outcome is a significant loss for the employer and will likely result in the employer choosing to settle the case with the employee rather than go forward to a trial.

Looking back at the facts of the Texas case, there are a couple simple and obvious lessons for other employers.  First, ensure in any termination of employment that you follow your own company policies/procedures.  If you fail to follow your own policies/procedures a court or agency will doubt the truthfulness of story you tell regarding the termination.  Second, make sure your management team is on the same page with the decision-making process.  If      Continue Reading...

New OSHA Reporting Rule Goes Into Effect

Effective January 1, 2015, the new OSHA incident reporting rule took effect.  The rule change expands the types of incidents employers are required to report to OSHA.  The prior rule required employers to report a work-related fatality or work-related hospitalization of three or more employees.  The rule has been modified to require the reporting of any work-related fatality, work-related hospitalization of one or more employees, all work-related amputations, and any work-related loss of an eye.  These new rules significantly lower the threshold for reporting incidents to OSHA.  The result of these changes will be an increase in the number of incidents that an employer is required to report to OSHA.  Employers should make note of the lower threshold on hospitalizations and the addition of the amputation and eye loss requirements. 

NLRB Election Rule Challenged

As most of you are aware, the National Labor Relations Board (NLRB) recently issued a rule changing the process for representation election proceedings.  The rule changes essentially accelerate the process and is a favorable change for unions.  This is the second time the NLRB has attempted to implement this new representation election rule.  The last time the NLRB attempted to implement the rule (2011), the U.S. Chamber of Commerce filed a lawsuit that ultimately resulted in the rule being rescinded due to technical issues in how the NLRB adopted the rule.  Now that the NLRB has reintroduced the rule, the U.S. Chamber of Commerce has filed suit again in an attempt to block the implementation of the rule.  This time around the rule will need to be challenged on its merits because the technical issue from the 2011 implementation will not be an issue.  These challenges will resolve around due process, freedom of speech, and the intent of the National Labor Relations Act.  Stay tuned as the litigation proceeds forward.  The rule is set to take effect on April 1. 

The Save American Workers Act

Congress is already at work in early 2015 and attempting to make changes to the Affordable Care Act.  The House passed legislation to change the definition of full-time employment from 30 hours per week to 40 hours per week.  Now its up to the Senate to pass a similar measure.  While Congress seems intent on making changes to the Affordable Care Act, the White House isn't likely to sign off on such a measure.  Stay tuned for further developments as the measure works its way through the Senate.  The introduction of this legislative proposal is likely to be just the first of many actions Congress will take in the coming months.

H-1B Season is Approaching

Now that the calendar has turned to 2015 it is time to begin considering the rapid approach of the H-1B filing window.  The H-1B visa is the most commonly utilized work visa for employers.  While USCIS has not issued any information yet with respect to the filing window and lottery process, employers should expect 2015 to be no different than the last couple of years.  The H-1B cap for the 2016 fiscal year (starts on October 1, 2015) will be hit in the initial filing window.  This means employers seeking a H-1B visa for an employee will need to be prepared to file the application by April 1, 2015, to participate in the lottery for a visa.

As a word of warning, if you have individuals working for you that are utilizing OPT (Optional Practical Training) this blog posting applies to you.  If these individuals haven't asked yet, expect them to be asking soon about an H-1B filing in this upcoming filing window.  Considering the need to file by April 1, 2015, it isn't too early to start talking through these issues and planning for any filings. 



Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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