As many employers know, OSHA published a Final Rule on May 12, 2016 that amended the Code of Federal Regulations to add additional provisions regarding proper reporting and retaliation for workplace reporting. OSHA took the position that certain workplace policies may deter or discourage proper workplace reporting, including disciplinary policies, incentive policies, and post-accident drug testing policies. In other words, OSHA asserted that a blanket policy that requires drug-testing of any employee after a workplace accident is likely to discourage employees from reporting workplace injuries. Therefore, if an employee is drug-tested after an accident under a blanket policy and disciplined for violation of the policy, OSHA may later determine that the discipline was unlawful retaliation because the employer had no reasonable basis to conclude that drug use may have contributed to the accident. (more…)
Since 2014 when President Barack Obama directed the DOL to “modernize” the overtime law, the new overtime rules were announced, published, revised, published again, finalized, legally challenged and then judicially blocked. Just when we thought the rules were dead in the water, the overtime ride forges ahead once again. Last week, the DOL published a Request for Information (RFI) asking interested parties 11 specific questions regarding the application and challenges of the overtime rules. The request for public comment signals that the DOL is going to take another stab at updating the overtime rules but leaves the question as to what those updates may be.
TheCloud: Good Morning! TheCloud is a leading cloud-based provider, striving to secure your apps, email and confidential data in the cloud. How may we help you today?
Mr. Techie: My name is Mr. TechieTechie, I’m the CEO and founder of Tech to Tech. I have an account with TheCloud, but I’m having trouble accessing it all of the sudden. It keeps saying the password is incorrect.
TheCloud: I see, and what is your account number?
Mr. Techie: 7264388. I had access to the account just two days ago. What changed?
TheCloud: It appears that the primary contact on the account, Mr. Disgruntled, logged in yesterday and made some changes to the account, including changing the network password.
Mr. Techie: Mr. Disgruntled hasn’t worked here in six months! How is he able to do that?
TheCloud: When the account was activated, it appears that you designated Mr. Disgruntled as the primary contact on the account, which enables him to make changes, including changes to login information. The primary contact also has access to company data, and is able to send and receive emails.
Mr. Techie: Well as I mentioned, Mr. Disgruntled was terminated more than six months ago, and he no longer is authorized on this account. Please delete Mr. Disgruntled as the primary contact and replace him with me.
TheCloud: Unfortunately, Mr. Techie, we are unable to do that. As primary contact, Mr. Disgruntled essentially owns the account and its content. Any changes that are made must be authorized by him.
Mr. Techie: I’m the CEO and founder of the company. Are you telling me that I’m locked out of my own account? And the only way I can get back in is with Mr. Disgruntled’s permission? That’s ridiculous. I own the account!
TheCloud: That’s right. And unfortunately, since you are not authorized on the account, that is all of the information I can provide you with today. Please have a pleasant weekend! Try not to think about Mr. Disgruntled destroying your data, contacting your customers and stealing your proprietary information! Buh-bye!
“Click.” Of course, a dutiful customer service representative would never let that last part slip. However, three days later, you realize that Mr. Disgruntled has indeed misrepresented to potential customers that he is still in charge of the company. He is taking orders and promising customers that their orders will arrive without delay. But they never get their orders, and a customer has now called you explaining that because her order never got there, she has lost $1,000,000 in revenue. Needless to say, she is upset, and using you as a supplier in her future business plans is the last thought on her mind. (more…)
As we previously reported, during the last year of President Obama’s Administration, the Occupational Safety and Health Administration (OSHA) published an amendment to its illness/injury recording keeping rule, which would have significantly changed employers’ obligations regarding reporting. In brief, among other controversial provisions, the new rule would require employers, beginning July 1, to submit their employee injury/illness data to OSHA so that the data can be published for all to see.
In an expected move, OSHA has announced that it has suspended its electronic injury and illness data submission requirement, which was set take effect on July 1. OSHA’s website now states:
OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.
Employers may rejoice that OSHA has not indicated when or if a new deadline would be set for electronic submissions, or whether it will reverse the rule that established this public reporting of injury/illness records. OSHA may indicate its stance on the rule after a new head of OSHA is appointed.
Delaware and Oregon have joined Massachusetts and other local jurisdictions (like New York City, Philadelphia and Pittsburgh (currently in litigation)) by enacting laws that prohibit employers from inquiring about the salary histories of job applicants. Most of the provisions of Oregon’s Equal Pay Act of 2017 take effect on January 1, 2019, which gives employers time to focus on compliance. Delaware’s ban, however, takes effect on December 1, 2017, so those employers operating in Delaware need to act quickly to change their recruiting and related processes.
While employers wait to see if the Trump Administration will produce a kinder, gentler National Labor Relations Board (NLRB), the NLRB is still in the business of punishing employers for workplace policies that ostensibly violate employees’ rights under the National Labor Relations Act (NLRA).
Former University of Southern California football player Lamar Dawson’s attempt to be declared an “employee” under the Fair Labor Standards Act (FLSA) was soundly defeated in federal court. Dawson brought the lawsuit on behalf of himself and a similarly situated class of Division I FBS football players in which he alleged that they should be entitled to minimum wage and overtime payments in return for their “work” generating “massive revenues” for their universities. (more…)
While President Obama’s landmark overtime expansion is pending in a Texas federal court, on May 2, 2017, the Republican House passed the Working Families Flexibility Act (H.R.1180/S.801) by a vote of 229 – 197, which would change overtime pay in the private sector, as we know it. Not one Democrat voted for the bill and Senator Elizabeth Warren called the bill a “disgrace” on Twitter. In opposition to the Act, the National Partnership for Woman & Families calls the Act “harmful, smoke-and-mirrors legislation” as it believes that the Act would set up a false choice between time and money. Why is everyone so up in arms about the Act? Let’s take a look . . .
New York City is the third jurisdiction to pass a ban on salary history inquiries, following Massachusetts and Philadelphia. Philadelphia’s law was set to take effect in May 2017, however, the constitutionality of Philadelphia’s ban was challenged when the Chamber of Commerce of Greater Philadelphia filed a lawsuit in federal court on April 9, 2017, claiming the ban deprives businesses of their First Amendment rights. Read our recent article outlining the provisions of Philadelphia’s ban. New York City’s law will take effect 180 days after the Mayor signs it, which is expected because the Mayor has expressed approval of the ban.
A few weeks ago, the public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed guidance on unlawful workplace harassment closed, drawing mixed responses from commentators. The purpose of the proposed guidance, which was issued this past January, is to educate practitioners, employers and employees on the agency’s position toward the different types of harassment that Title VII prohibits. (more…)