02.01.18 HPSS Law eBlast

Be Sure to Comply with OSHA's Form 300A Posting Requirement

Between February 1 and April 30, covered employers must post OSHA's Form 300A in a place easily accessible to employees, such as the break room. Form 300A summarizes the total number of work-related injuries and illnesses that occurred during the prior calendar year and entered into OSHA Form 300, which logs such injuries and illnesses. Whereas Form 300 should include details, such as the nature of the injury and where it occurred, Form 300A only lists information such as the total number of deaths, cases involving days away from work, and total number of days away from work for all recordable cases. Recordable cases are those that involve a death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; diagnosis of a significant injury or illness by a healthcare professional; or a needlestick or sharps injury involving contamination by another person's blood or other potentially infectious materials.

Construction employers must post Form 300A even if no recordable injuries occurred during the prior year, with zeroes entered in the spaces.  

Many employers with more than 10 employees are required by OSHA to keep a record of serious work-related injuries and illnesses. These records are used by employers, employees, and OSHA in the evaluation of worker safety, the assessment of industry safety hazards, and the implementation of worker protections to reduce and/or eliminate safety hazards, all of which work together to prevent future workplace injuries and illnesses. Only certain low-risk industries are exempt from the recording requirements, and minor inquiries requiring only first aid do not need to be recorded.

Under current rules, injury and illness records must be maintained at the worksite for at least five years. Also, copies of the records must be provided to past and current employees, or their representatives, upon request.

If you have any questions about OSHA's recordkeeping requirements, or any other questions about OSHA, please contact William Burnett or Philip Siegel. You can reach William Burnett directly at (404) 469-9183 or e-mail him by clicking here. You can reach Philip Siegel directly at (404) 469-9197 or e-mail him by clicking here

NLRB Overturns Obama-Era Rule on Joint Employer Standards

In December, the NLRB issued its decision in the Hybrand Industrial Contractors case and overruled the Browning-Ferris standard regarding joint employers imposed by the Obama-era board. As a result, the long-standing pre-Browning Ferrisstandard governing joint-employer liability was reinstated.

In Browning-Ferris (issued in 2015), the NLRB rejected the requirement that a joint employer's control be direct and immediate and replaced it with a test that evaluated whether the employer exerted indirect control, possessed contractually authorized control even though it had never been exercised, or exerted control that was limited and routine. As we discussed in an update at the time Browning-Ferriswas decided, this test required a detailed determination on a case-by-case basis and had the potential to lead to confusion. It also exposed more businesses to possible unfair labor practices charges and union organizing efforts.

The new ruling in Hybrand restores the earlier standard which had been in place for several decades. Consequently, two or more entities will now be deemed joint employers under the NLRA if there is proof that one entity has exercised control over essential employment terms of another entity's employees and has done so directly and immediately in a manner that is not limited or routine. Indirect control or reserved (but not exercised) control will no longer constitute evidence that the entities are joint employers.

By reinstating the earlier standard, the NLRB has provided greater stability and predictability in evaluating such cases, limiting the case-by-case uncertainties caused by the Browning-Ferrisstandard. Legislation is still pending in Congress to require direct control in any joint employer finding, but the NLRB ruling may slow any momentum to move that legislation forward. We will, however, provide further updates on any future developments.

If you have further questions about the Hybrand case or the joint employer standard, please e-mail Philip Siegel by clicking here or phone him at 404-469-9197, or e-mail Scott Calhoun by clicking here or phone him at 404-469-9195.

Understanding OSHA: OSHA'S Increased Penalty Amounts

On November 3, 2015, President Obama signed the Bipartisan Budget Act of 2015 (Act) into law. The Act was a two-year deal that was negotiated quickly to avoid a default on our nation's debt. Budgets often contain obscure changes to laws that are not easily identified. However, this Act was unique because it contained a provision that allowed the Occupational Safety and Health Administration (OSHA) to increase its maximum penalties for the first time in 25 years.

Most government agencies typically have the authority to adjust their maximum penalty amounts annually for inflation. However, OSHA had not been allowed to adjust its penalties amounts since they were enacted over 25 years ago. Importantly, the Act does allow OSHA to annually adjust the maximum penalty amounts to reflect inflation, similar to other government agencies.

For 2018, OSHA recently announced maximum penalty amount increases to account for inflation. Penalties for an other-than-serious violation, a serious violation, and a failure-to-abate violation increased to $12,934.00, which represents a $319.00 increase over these same penalties in 2017. Willful and repeat violations now have a maximum penalty amount of $129,336 per violation, which represents an increase of $2,587.00 over last year's maximum penalty amount for willful or repeat violations.

In light of this increase in OSHA penalty amounts, and the fact that these amounts will continue to increase annually to account for inflation, it is a good time to revisit your company safety program to make sure you are taking those steps necessary to defeat a citation based on the unforeseeable employee misconduct defense. To establish the affirmative defense of unforeseeable employee misconduct, an employer must show that it (1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the rules when violations were discovered.

While most roofing contractors have work rules, provide training, inspect their jobsites, and discipline employees who violate safety rules, it is absolutely imperative that documents are maintained that provide evidence of the same, and that the company's safety program, especially its disciplinary component, is effective such that violations are truly unforeseeable. Even verbal reprimands should be documented. All documents which would support the affirmative defense of unforeseeable employee misconduct should be well organized and stored in a safe place for easy access in the event the company is cited for an OSHA violation.

U.S. Department of Labor Adopts "Primary Beneficiary" Test for Determining whether an Intern is an Employee under the FLSA

On January 5, 2018, the U.S. Department of Labor ("DOL") issued a press release announcing that it would adopt the "primary beneficiary" test applied by federal appellate courts for determining whether interns and students are employees under the Fair Labor Standards Act (FLSA). Apparently, the DOL was sparked to move away from its six-part tests by the U.S. Court of Appeals for the Ninth Circuit's express rejection of the six-part test in Benjamin v. B & H Educ. Inc. Like the 11th Circuit before it, the 9th Circuit looked to the "primary beneficiary" test set forth by the 2nd Circuit in Glatt v. Fox Searchlight, Inc. In Glatt, the 2nd Circuit determined that the DOL's six-part test was too rigid and a flexible balancing test was better suited to gauge the economic reality of the relationship in today's economy. Thus, the goal of the "primary beneficiary" test is to determine whether the employer or the intern is the primary beneficiary of the relationship. If the intern is the primary beneficiary, then the intern is not an employee under the FLSA.

Accordingly, The DOL has released and updated its intern fact sheet, Fact Sheet #71, which sets forth the seven factors of the "primary beneficiary" test as:  

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee - and vice versa. 
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by education institutions.
  3. The extent to which the internship is tied to the intern's formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern's work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Under the "primary beneficiary" test, no factor is determinative, and the determination is based on the totality of the circumstances. In its press release, the DOL noted that the Wage and Hour Division would "update its enforcement policies to align with recent case law, eliminate unnecessary confusion among the regulated community, and provide the Division's investigators with increased flexibility to holistically analyze internships on a case-by-case basis."

New Bill Would Outlaw Forced Arbitration of Sexual Harassment Claims in the Workplace

Last month, a new bill was introduced in Congress which if passed, will void any employment contract provision which mandates arbitration as the sole method for litigating a sexual discrimination or harassment claim brought by an employee.  The Ending Forced Arbitration of Sexual Harassment Act(H.R. 4570) was introduced in the house with the bipartisan support of Representatives Cheri Bustos (D-Ill.), Walter Jones (R-N.C.), and Elise Stefanik (R-N.Y.), and Senators Lindsey Graham (R- S.C.), Kirsten Gillibrand (D-N.Y.), and Kamala Harris (D-Calif.).

Approximately 60 million workers in the United States are limited by forced arbitration provisions in their employment contracts.  Insofar as most private sector employees are employees "at-will," the bill primarily affects those employers who maintain a union workforce - which of course includes a large sector of the construction industry.  

If signed into law, the bill will prevent employers from requiring that an employee arbitrate a sexual harassment or gender discrimination complaint.  While the bill does not mean that a sexual harassment or discrimination dispute will automatically be fast-tracked into the public spotlight of a courtroom - it does remove the protection of privacy afforded by arbitration in the event that pre-suit settlement negotiations fail.  Moreover, arbitration tends to be less expensive, thus, failed settlement will equate to higher costs of litigation. Accordingly, at its heart, the bill stands to give employee claimants another tool, and a strong one at that, in their pre-suit negotiation arsenal. The risk of public exposure - and the resulting ire felt by consumers or potential customers - alone will motivate employers to seek settlement of sexual harassment claims. Thus, at a minimum, the bill certainly stands to provide more favorable settlement outcomes for sexual harassment claimants. 

If signed into law, the bill will result in increased costs of litigation, higher settlements, and damage to "good will" (a business's reputation, patronage, and other intangible assets that add value and affect the success of a company) for employers who choose to do nothing about taking preventative measures to thwart sexual harassment and discrimination in the workplace.   To counteract these burdens, employers should take a stronger stance on ensuring a safe and harassment-free workplace for all employees, and drive home a zero tolerance policy of sexual harassment in the work place.