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Wednesday, May 25, 2016

OSHA Rule Requires Public Electronic Reporting of Injuries by Employer

By: Thomas Eden


Recently, the Occupational Safety and Health Administration (OSHA) amended its occupational injury and illness record keeping rules to require electronic submission of injury records to a publicly accessible OSHA website. This is part of OSHA efforts to shame employers into compliance.  The new electronic submission requirements will be phased in as follows:

·               ·        Large (250+) and small (20-249) establishments must submit only the 300A Annual Summary for the first year, calendar year 2016.

            ·         In subsequent years those establishments with 250 or more employees will also have to include their OSHA 300 Logs and OSHA 301 Incident Reports.
·        
            ·         In subsequent years, those establishments with 20-249 employees must submit only the 300A Annual Summary.

For the first two years under the new rule, the submission deadlines for submitting the previous calendar year’s records are July 1, 2017; July 1, 2018; and then beginning in 2019, and for every year thereafter, March 2.

In addition to the new electronic submissions putting a much greater volume of establishment-specific injury and illness information in the hands of OSHA, which has acknowledged that it will use the additional information to conduct targeted inspections, the information will also be accessible to the public via a searchable website database. For example, a union could use the information as an organizing tool, a reporter could publish the information, or a disgruntled former employee could base a complaint to OSHA on the recordkeeping information. It will be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose.  Employees could also easily access the information to determine whether their employer has recorded the injuries and illnesses that have occurred, and then complain to OSHA if they are not satisfied that a case was recorded or recorded properly.

"Reasonable" reporting procedures and retaliation: The new rule also includes anti-retaliation provisions that were not in the initial, proposed version, reportedly in response to concerns expressed by organized labor and other groups that employers might be pressuring their employees not to report injuries and illnesses.  Beginning August 10, 2016, employers are required to inform employees of their right to report work-related injuries and illnesses free from retaliation, and to establish “a reasonable procedure” for employees to report work-related injuries and illnesses “promptly and accurately.” 

The new rule also calls into question any employer that conducts post-injury drug tests for all reported injuries.  OSHA states that unless it appears that the injury was a result of an impairment, requiring a post-injury drug test will be viewed as “unreasonable.” OSHA would apparently require some objective evidence of impairment before allowing a post-injury drug test, making the test in effect what most drug testing policies call “reasonable suspicion testing.”

It remains to be seen what parts, if any, of the new rule will be challenged in court, and therefore whether it will go into effect as presently scheduled on August 10, 2016. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. The above information was taken from a more extensive Client Alert published by his law firm’s OSHA Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with complete update and links.



Friday, May 20, 2016

DOL White Collar Exemptions Double Salary Threshold

       By: Thomas Eden


This week the Wage and Hour Division of the U.S. Department of Labor (DOL) released its long-awaited Final Rulehttps://www.dol.gov/WHD/overtime/final2016/ regarding changes to the regulations governing who is an executive, administrative, professional, or highly-compensated employee under the Fair Labor Standards Act.

In addition to the Final Rule, the Department has also issued a Fact Sheet summarizing the regulation. The Final Rule will:

· Raise the salary threshold from $455/week to $913/week ($47,476 per year). This is the equivalent of the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South.


· Permit non-discretionary bonuses and incentive payments (including commissions) to account for up to 10 percent of the new required salary level.


· Raise the salary level of the “highly compensated employee” to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is $134,004.


· Automatically update the salary thresholds every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.


· Require NO change in the current Duties Tests.


· Permit NO carve-out for colleges and universities, but these entities will be given options to avoid paying overtime under the current FLSA regulations. (See DOL release guidance aimed at higher education)


· Institute a non-enforcement policy related to organizations that serve people with disabilities. (See DOL release guidance targeted at nonprofits)


· Reinforces prior DOL guidance on Comp time and the required notices to employees (see DOL guidance targeted to state and local governments)


The effective date of the new regulation is December 1, 2016. Earlier this year, DOL officials had called for an effective date 60 days after issuance.


Common Sense Counsel: the above summary is from the Constangy Brooks Smith & Prophete, LLP, client bulletin drafted by my Boston law partner Ellen Kearns. We will hold webinars on the new Final Rule and will issue follow-up bulletins as we continue to analyze the Rule. The key decision for Human Resources departments and management is whether to raise the salaries of currently exempt employees to $47,476, or to reclassify those employees to non-exempt status. If you are going to reclassify, you will need to determine the regular rate of pay for these employees in order to determine the proper overtime rate. This will require careful planning and consideration of a number of issues, not the least of which is how many hours of overtime are expected to be worked each week by the involved employee.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with Links to worksheet and regulations on Blog. Send an email to cjohnson@constangy.com if you wish to be placed on the free Constangy newsletter list.

Wednesday, May 18, 2016

New 2016 Overtime Final Rule Released

In 2014, President Obama directed the Secretary of Labor to update the overtime regulations to reflect the original intent of the Fair Labor Standards Act, and to simplify and modernize the rules so they’re easier for workers and businesses to understand and apply. The department has issued a final rule that will put more money in the pockets of middle class workers – or give them more free time.

The final rule will:
Raise the salary threshold indicating eligibility from $455/week to $913 ($47,476 per year), ensuring protections to 4.2 million workers.

Automatically update the salary threshold every three years, based on wage growth over time, increasing predictability.

Strengthen overtime protections for salaried workers already entitled to overtime.
Provide greater clarity for workers and employers.

The final rule will become effective on December 1, 2016, giving employers more than six months to prepare. The final rule does not make any changes to the duties test for executive, administrative and professional employees.     


WAGE & HOUR DETAILS
Final Rule: Overtime
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act

On May 18, 2016, President Obama and Secretary Perez announced the publication of the Department of Labor’s final rule updating the overtime regulations, which will automatically extend overtime pay protections to over 4 million workers within the first year of implementation. This long-awaited update will result in a meaningful boost to many workers’ wallets, and will go a long way toward realizing President Obama’s commitment to ensuring every worker is compensated fairly for their hard work.

In 2014, President Obama signed a Presidential Memorandum directing the Department to update the regulations defining which white collar workers are protected by the FLSA's minimum wage and overtime standards. Consistent with the President's goal of ensuring workers are paid a fair day's pay for a hard day's work, the memorandum instructed the Department to look for ways to modernize and simplify the regulations while ensuring that the FLSA's intended overtime protections are fully implemented.

The Department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on July 6, 2015 (80 FR 38515) and invited interested parties to submit written comments on the proposed rule at www.regulations.gov by September 4, 2015. The Department received over 270,000 comments in response to the NPRM from a variety of interested stakeholders. The feedback the Department received helped shape the Final Rule.

Key Provisions of the Final Rule
The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:
Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);

Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and

Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

The effective date of the final rule is December 1, 2016. The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.


Although the Office of Management and Budget (OMB) has reviewed and approved the Final Rule, the document has not yet been published in the Federal Register. The Final Rule that appears in the Federal Register may contain minor formatting differences in accordance with Office of the Federal Register publication requirements. The OMB-approved version is being provided as a convenience to the public and this website will be updated with the Federal Register’s published version when it becomes available.

Thursday, May 12, 2016

Bathroom Wars Begin


By: Thomas Eden

Bathroom Bills have created a civil war between the federal and states over preventing transgender individuals from using public bathrooms that correspond to their gender identity or outward gender expression. On May 4, 2016, the Justice Department sent a formal letter to North Carolina Gov. McCrory, summarizing its position on North Carolina’s Bathroom Bill and urging public officials to abandon the bill because it violated Title VII of the Civil Rights Act of 1964 (“Title VII”). On Monday, May 9, 2016, both the U.S. Department of Justice and North Carolina filed dueling federal lawsuits over the legality of the state’s Bathroom Bill

This bathroom war has a direct impact on employers and practices of bathroom access for transgender employees. The Equal Employment Opportunity Commission (EEOC’s) interpretation of the breadth of Title VII’s prohibition on transgender sex discrimination in the bathroom wars is clear:

1.   Employers cannot require transgender employees to provide proof of surgery or gender reassignment before the employees are permitted to use the bathroom corresponding with their gender identity or expression.

2.   If common bathrooms are available (i.e., gender-specific restrooms with multiple stalls or urinals) for non-transgender employees, employers cannot relegate transgender employees to use only a single-user bathroom in lieu of using the common bathroom.

3.   Employers can make single-user bathrooms available for all employees and employees (including transgender employees) may choose to use the single-user bathroom.

4.  The sentiments, beliefs, confusion, comfort-level and/or anxiety of other employees is not a defense to discrimination nor does it excuse an employer from the obligation of permitting transgender employees access to a common bathroom that corresponds with their gender identity or expression.

Likewise the Occupational Safety and Health Administration (OHSA) in 2015 issued its “Model Practices for Restroom Access for Transgender Employees” as follows:

Many companies have implemented written policies to ensure that all employees—including transgender employees—have prompt access to appropriate sanitary facilities. The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.

The employee should determine the most appropriate and safest option for him- or herself.

The best policies also provide additional options, which employees may choose, but are not required, to use. These include:

•    Single-occupancy gender-neutral (unisex) facilities; and
•    Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.

Common Sense Counsel: until one side can declare clear victory in the bathroom wars, for now the United States Regulatory forces clearly own the bigger flusher and “resistance is futile” in the words a Borg possessed Captain Jean Luc Picard.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to litigation and guidance.













Friday, May 6, 2016

Keeping Secrets About to Get Easier



By: Thomas Eden

The Defend Trade Secrets Act (“DTSA”) passed by both houses of Congress on April 29 and currently sits on the President’s desk. By all accounts he will sign and the Act will become effective upon his signature and will apply to any misappropriation of trade secrets that occurs on or after the date it is signed. The DTSA is the most sweeping change to the nation’s intellectual property laws in a generation.

With this new law Companies, and other institutions, that are victims of trade-secret theft will have a federal alternative to bring a civil action anywhere in the nation to enjoin violations of trade-secret theft.

The DTSA does not preempt current state trade secrets laws. State courts will remain an option for victims of trade secret theft. One distinction is that the DTSA expressly rejects the “inevitable disclosure” doctrine recognized by many states and precludes a court from enjoining a person from entering into an employment relationship. Rather, the Act requires evidence of threatened misappropriation rather than merely information that the person knows.

The most significant federal addition to trade secret protection is its authorization of ex parte seizure orders (without pre-hearing notice to the defendant) by federal court judges. Under the DTSA, a person may have a laptop, server, storage device, papers, or other property forcibly taken into custody without advance notice. Such an order must be the “narrowest” necessary to achieve the purpose of the order, but still makes the DTSA a potent weapon for employers. Fairly substantial proof will be required to obtain this extraordinary interim remedy.

Attorneys’ fees and exemplary damages are not recoverable under the DTSA unless the employer has provided its employee, consultant, or contractor with notice of certain immunity from criminal and civil prosecution granted by the DTSA to persons who disclose trade secrets by the means provided by the DTSA. This would apply to government agencies and production under seal in court proceedings.

Common Sense Counsel: this is the most significant soon to be available weapon to combat employee trade secret theft. Be prepared to quickly take these steps: 1) all non-disclosure agreements, confidentiality agreements, employment agreements, consulting agreements, and independent contractor agreements should be redrafted to include new DTSA non-disclosure provisions to include the required notice; 2) documents containing trade secrets should be labeled as confidential, their distribution should be limited, they should be maintained in secure areas, and individuals who are privy to such secrets should be trained on the nature of that information and how to safeguard it; 3) access to computer files containing such information should be restricted, 4) those with access should be trained on the files’ confidentiality; and 5) because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, be prepared to bring  such claims in federal court in tandem with the alleged DTSA violation.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to legislation.

UPDATE: Bill now signed into law. Read about it here.