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Thursday, June 29, 2017

OSHA Punts Electronic Reporting Regulations


By: Thomas Eden

The Occupational Safety and Health Administration proposes to give employers until Dec. 1 to electronically submit injury summaries — and will propose changing other parts of the rule.

OSHA was going to require certain employers to submit their Form 300A annual injury and illness summaries electronically. This requirement was part of the Agency’s new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” promulgated during the Obama Administration. Electronic versions of the Form 300A summaries for 2016 would have been due July 1 (this Saturday).
However, the Agency published a Notice of Proposed Rulemaking in Wednesday’s Federal Register to extend the July 1 deadline for five months, until December 1, 2017. In addition to proposing the five-month delay, OSHA announced in the Notice that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the new injury and illness tracking rule. Besides the electronic submission requirement, that new rule, issued on May 12, 2016, also includes controversial new anti-retaliation requirements that OSHA interpreted as restricting post-injury drug testing and incident-based safety incentive programs. Also controversial, and likely to be part of OSHA’s planned reconsideration, was the Obama Administration’s plan to post the injury and illness information submitted by employers on OSHA’s website. OSHA will accept comments on the due date extension proposed in Wednesday’s Notice until July 13, but will not yet consider any comments on other provisions of the new rule.

Primarily, the new injury and illness tracking rule requires larger establishments with at least 250 employees at any time during the previous calendar year to submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries to the Agency through a new website that would allow, with very limited exceptions, for public access to that information. Smaller establishments, with at least 20 employees, in certain industries with high injury and illness rates, are required to submit the information from their 300A Annual Summary to the new OSHA injury and illness website each year. These electronic submission requirements were to be phased in over a two-year period. Before Wednesday’s proposed extension, both larger and smaller establishments would have been required to submit their 300A Forms – but not the OSHA 300 logs or the 301 Incident Reports – by July 1.

Common Sense Counsel: This is a most favorable announcement from OSHA, but will require that you stay tuned as we monitor for additional information about the extension and other possible changes to the rule and OSHA’s interpretation of it. Employers who previously discontinued post-accident drug testing should seriously consider post-accident drug testing on a regular basis. I am of the opinion that there will be no OSHA enforcement until after Dec. 1 and employers should take advantage of this window of opportunity.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com

Friday, June 23, 2017

What Gets Measured Gets Improved

Image result for moneyball
By: Thomas Eden

Management consultant Peter Drucker said these words more than 40 years ago, and they are at the heart of what Google does to produce Great Teams and Great Bosses.

Fans of Brad Pitt, playing Oakland A’s Baseball Coach Billy Beane, will remember the lessons of Moneyball. For over a century, baseball managers were using the wrong metrics to make management decisions to draft professional baseball players. Moneyball tells the story of desperate risk taking coach who changed everything for major league baseball player selection.  Enter Peter Brand, a computer whiz with an economics degree from Yale. With his glasses and middle-management jackets, Peter looked like he should be crunching numbers at an accounting firm. But he had a baseball clutched in his hand, a love of the game in his heart and he wanted to throw the world a digital age curveball.

In 2001 the A’s finished second in the American League West, but that October, in the game that opens the movie, they lost the Division Series to the New York Yankees. The score was 5-3, but the numbers that flashed across the screen — $114,457,768 vs. $39,722,689 — was the payroll of each team. With Peter Brand’s computer whiz metrics, Coach Beane helped transform the Oakland A’s, one of the poorest in baseball, into serious competition for the wealthiest franchises. He did it by ignoring everything he’d been taught about the game and instead relied on the data. When the old scouts talk about a minor league player with the perfect baseball look, Coach Beane admonished them,Your goal shouldn't be to buy players, your goal should be to buy wins.” When Peter is asked by Coach Beane why he likes a certain player, he responds – “Because he gets on base.”
When evaluated based on the metric proposed in Moneyball, the “slugging percentage,” became like Google’s use of “Objective and Key Results,” or OKRs. By having access to OKRs, Google tests and tweak strategies, analyzes the results, refines their strategy and repeats. The results must be specific, measurable, and verifiable.It does it for everything from how applicants are located, team members are interviewed four times by a cross section of people, they are on boarded with a first day one-on-one with their new team leader, Upward Feedback Survey of their boss - you name it Google measures it.  

What Google discovered by use of Big Data, was what Peter Drucker knew 40 years early ago. Google used Mission + Transparency + Voice + Big Data to create in 20 short years one of the most world changing companies to ever exist. Google’s Mission is to “take the world's information and make it universally accessible and useful.” How many times each day does Google exceed your expectations. Coach Beane remarks at the end of the Moneyball, we're going to change the game." Follow Google’s Big Data blueprint for success and your team might just might hit it out of the park!

Want to Learn More? Attend Great Teams + Great Bosses + Happiness = Competitive Advantage! TUESDAY, JUNE 27, 2017, 11:00 AM - 1:00 PM.  $25 Lunch is included; LOCATION Saugahatchee Country Club 3800 Bent Creek Rd, Opelika, AL; SPEAKER Tommy Eden, Esq. - Constangy, Brooks, Smith & Prophete, LLP. Registration link at www.alabamaatwork.com or email teden@constangy.com



Thursday, June 15, 2017

The Mark of the Beast: The Rest of the Story

By: Thomas Eden

Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner. This technology creates and stores electronic information about an individual’s hand geometry for purposes of future identification.

Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning. Butcher then provided his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible, and requested exemption from hand scanning because of his religious belief.

His managers later responded by handing Butcher a letter written by its scanner vendor, Recognition Systems, Inc., addressed to “To Whom it May Concern.” The vendor’s letter discussed the vendor’s interpretation of Chapter 13, Verse 16 of the Book of Revelation contained in the Bible; pointed out that the text of that verse references the Mark of the Beast only on the right hand and forehead; and suggests that persons with concerns about taking the Mark of the Beast “be enrolled” with their left hand and palm facing up. The letter concludes by assuring the reader that the vendor’s scanner product does not, in fact, assign the Mark of the Beast.

Butcher proposed that he continue submitting his time and attendance manually as he had previously done, or that he be permitted to check in and check out with his supervisor. At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.

Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning.

At least two persons employed at the Robinson Run Mine at the time that Butcher requested religious accommodation were permitted exemptions from biometric hand scanning due to missing fingers. These two persons were permitted to submit their time and attendance by other means.

After hearing the above story, a jury awarded Butcher nearly $600,000 in the EEOC’s suit filed in West Virginia U.S. District Court alleging religious discrimination under Title VII of the Civil Rights Act of 1964.  The rest of the story is that this week the 4th Circuit Court of Appeals affirmed the jury’s award rejecting consol’s “Mark of the Beast” appeal saying that “it is neither the employer’s nor the court’s place to question the correctness or even the plausibility of Butcher’s understanding of religious doctrine”.

Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing flexible scheduling, voluntary substitutions or swaps, or modification of login requirements.  Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, dress code, job description with essential functions and be in an “accommodating” mood when employees approach you quoting scripture. Engaging in a bible sword drill with your employees in the interactive meeting is not a wise strategy. 

Thursday, June 8, 2017

U.S. Department of Labor withdraws Obama guidance on independent contractors, joint employment

Image result for joint employer


The U.S. Department of Labor announced June 7, 2017 that it has withdrawn informal guidance issued by the Obama Administration related to independent contractors and joint employment. The guidance on independent contractors was issued in 2015, and the guidance on joint employment was issued in 2016, both in the form of so-called “Administrator’s Interpretations,” which was a form of guidance the DOL adopted when it ended the longstanding practice of issuing Opinion Letters.
Here is the government’s news release from the DOL website:

U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

Common Sense Counsel: This development is welcomed news for all businesses who seek to legally distance themselves from the independent contractors and temporary employment services they utilize. However, the terms of the independent contractual agreements and temporary staffing contacts, are still critical to reducing the risk of being considered a joint employer under a variety of state and federal laws.


This article originally appeared as a Constangy Bulletin drafted by  Constangy law partners, James M. Coleman and Robin E. Shea.