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Mandatory Electronic Submission of 300A Forms Due July 1
OSHA recently declared its plans to formally reconsider and revise provisions of the Improve Tracking of Workplace Injuries and Illnesses rule (29 C.F.R. § 1904.41) enacted in May 2016 requiring certain employers to electronically submit annual records of work-related fatalities, injuries and illnesses beginning on January 1, 2017.
To start with, OSHA has now announced that at this time, construction industry employers with 250 or more employees "in each establishment" will only need to submit their Form 300A summary data each year, and are excused from submitting their 300 Log and 301 (incident report) forms as required under the May 2016 rule. OSHA is currently in the process of enacting a rule which is anticipated to formally implement this policy change.
Thus, construction-industry employers who have between 21 to 249 employees or 250 or more employees "in each establishment" are required to electronically submit their 2017 Form 300A (i.e. - their annual summary of work-related injuries and illnesses) to OSHA by July 1, 2018.
In 2019 and annually thereafter, the 300A form must be electronically submitted by March 2. Additionally, all employers, irrespective of their size, must electronically submit their 300 log, 300A annual summary, and 301 incident report forms whenever they are specifically requested by OSHA.
You may wonder what constitutes an "establishment" for the purposes of OSHA's electronic submittal of records rule. According to OSHA's Injury and Illness Recordkeeping regulations, an establishment is defined as a "single physical location where business is conducted or where services or industrial operations are performed." Thus, an employer must make a location-by-location determination of whether it meets the threshold requirement for number of employees (based on peak employment at any time during the year, including temporary, seasonal and part-time workers) to trigger the data submission requirements.
Notably, 6 of the 20 states which follow their own state run OSH-plans have yet to adopt OSHA's e-recording keeping rule into their own rules, despite federal OSHA's mandate that all state plans adopt substantially identical requirements within 6 months of the enactment of the May 2016 rule. Those states include California, Maryland, South Carolina, Utah, Washington and Wyoming. Accordingly, there is currently no legal requirement that employers operating these six states submit their 300A form to OSHA, nor any basis for receiving a citation for failing to comply. Nonetheless, employers in California should note that California OSHA has announced that even though it has yet to adopt its own state rule, that affected employers should still comply by submitting their 300A form by July 1, 2018.
OSHA will post the data from employers' electronic submissions on their web portal, which is available to the public. OSHA will not post information that could be used to identify individual employees. Employers and the public can access the web portal by clicking here.
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C
hanges to OSHA's Silica Rule Forthcoming?
On May 9, 2018, the Occupational Safety and Health Administration announced its intention to consider revisions to Table 1 of its final rule on Occupational Exposure to Respirable Crystalline Silica. The rule was first published on March 26, 2016. The rule became final last September, and OSHA did not begin enforcing the rule until late October. The silica rule seeks to protect workers who may inhale silica dust. Table 1 of the rule provides a listing of construction activities, and it describes engineering controls, work practices, and respiratory protection required for each listed activity for employers to achieve compliance with the standard. Various construction trade groups expressed concern about the requirements set forth in Table 1 of the rule. Two of the chief complaints was that Table 1 did not address enough construction activities, and compliance with the requirements of Table 1 for the activities listed was not viable. OSHA stated that it intends to publish a Request for Information during November. OSHA announcement specifically provided the following:
"OSHA is interested in information on the effectiveness of control measures not currently included for tasks and tools listed in Table 1. The Agency is also interested in tasks and tools involving exposure to respirable crystalline silica that are not currently listed in Table 1, along with information on the effectiveness of dust control methods in limiting worker exposure to respirable crystalline silica when performing those operations. OSHA intends to evaluate the available information to determine if revisions to Table 1 may be appropriate."
The Request for Information will allow the public to provide input to OSHA on what tasks should be added to Table 1 and how to make Table 1 more viable for employers in the construction industry. We will be sure to update you when the Request for Information is published. In the meantime, if you have any questions about compliance with OSHA's silica standard, please call Philip Siegel, who can be reached via e-mail by clicking here, or you can reach him directly at (404) 469-9197.
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The Supreme Court Enforces Waiver Of Class Actions In Employment Arbitration Agreements Under the FAA in Epic Systems v. Lewis
On May 21, 2018, in its decision of Epic Systems v. Lewis, the Supreme Court upheld the enforceability of arbitration agreements between employers and employees that require employees to arbitrate employment related disputes and waive the right to participate in class actions lawsuits or class arbitration of those disputes as a condition of continued employment. Specifically, in a 5-4 decision, with Justice Neil Gorsuch writing for the majority, the Court held that the Federal Arbitration Act ("FAA") requires that arbitration agreements providing for individualized proceedings must be enforced, and neither the FAA's savings clause nor the National Labor Relations Act ("NLRA") override that outcome. The decision makes clear that individualized arbitration agreements in the employment context are enforceable.
The case consisted of three consolidated matters, each arising from an employee's attempt to overcome an arbitration agreement which included a waiver of class action lawsuits. The employees argued that Section 7 of the NLRA, which protects an employee's right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," provided grounds at law for the revocation of the arbitration agreements under the savings clause of the FAA. In accordance with the opinion of the National Labor Relations Board and several Federal Circuit Courts of Appeal, the employees argued that class actions qualified as "concerted activities" under the NLRA and, as such, mandated individualized arbitrations violated the NLRA.
However, the majority opinion found that the individualized nature of the arbitrations was a fundamental aspect of arbitration proceedings and invalidating such agreements on this basis would sacrifice the principle advantage of arbitration, its informality, and its primary purpose of providing a more cost effective and efficient forum. Thus, the majority found that the FAA required enforcement of such agreements and essentially indicated that arbitration agreements could only be overcome by the traditional contractual defenses that would render any contract unenforceable, such as fraud, duress, or unconscionability. Further, the majority found that class actions were not "concerted activities" under the NLRA. In contrast, the Court determined that Section 7 of the NLRA focused only on the right to organize unions and bargain collectively and did not set forth any intent to displace the FAA.
Unsurprisingly, the dissenters had a wholly different view of the issues. First, the dissenters argued that the employees had no real bargaining power, because they were faced with the choice of agreeing to individualized arbitration or losing their jobs. Thus, the dissenters found that there was no agreement, only a mandate. Second, the dissenters pointed out that eliminating class remedies for low value claims would likely result in discouraging employees from ever bringing those claims and embolden employers to exploit employees. Third, the dissenters opined that the FAA does not apply 1) to employment contracts, 2) where a contract would not be enforceable under state law, or 3) where enforcement would prevent effective vindication of a claim. In summary, consistent with the perceived ideological divides of the justices, the dissenters focused on protecting employees while the majority took a pro-business approach favoring the enforcement of arbitration agreements.
What is clear from the decision is that individualized arbitration agreements in the employment context are undeniably enforceable. As such, employers should consider the manner in which employment disputes can be resolved under their current policies and conditions of employment. Employers should weigh the pros and cons of arbitration to determine if changing their conditions of employment to require individualized arbitration of employment disputes is a policy which would be beneficial to enact. For employers who already have such arbitration policies or decide to enact such policies, the focus should shift to ensuring that the policies are not unconscionable or otherwise unenforceable under other contractual defenses.
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NLRB Clarifies that Certain Standard Employment Policies are Lawful
It has been well over two years, during December, 2015, when we informed you
of the flurry of activity by the National Labor Relations Board (NLRB) concerning employee handbooks. The NLRB was focused on employee handbooks and the policies within employee handbooks which tended to chill the right of employees to engage in concerted activity, which is protected under the National Labor Relations Act (NLRA). The expansive definition afforded "concerted activities concerning the terms and conditions of employment" by the NLRB led to what some observers commented were silly results involving employment policies in employment handbooks. Indeed, back in 2015, the NLRB did issue a "Report Concerning Employer Rules" to collect and publish the NLRB's evolving positions on how employer handbook rules comport with the NLRA. For example, an "at will" employment policy was one of the NLRB's targets, and "at will" employment policies that tended to chill employees' rights to negotiate different terms and conditions of employment were deemed illegal.
Importantly, on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memo, which can be accessed by clicking here,
detailing how the NLRB Regional Offices receiving complaints of improper employment policies are to interpret employer workplace rules. The General Counsel's memo establishes three categories of employer workplace rules: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are plainly unlawful to maintain. Among those rules that fit into the first category are the following:
- Civility rules (such as "disparaging, or offensive language is prohibited");
- No-photography rules and no-recording rules;
- Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
- Disruptive behavior rules (such as "creating a disturbance on company premises or creating discord with clients or fellow employees is prohibited");
- Rules protecting confidential, proprietary, and customer information or documents;
- Rules against defamation or misrepresentation;
- Rules against using employer logos or intellectual property;
- Rules requiring authorization to speak for the company; and
- Rules banning disloyalty, nepotism, or self-enrichment.
Rules falling into the second category include the following:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;
- Confidentiality rules broadly encompassing "employer business" or "employee information" (as opposed to confidentiality rules regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions);
- Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees);
- Rules regulating use of the employer's name (as opposed to rules regulating use of the employer's logo/trademark);
- Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer's behalf);
- Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations); and
- Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).
The last category of rules are generally unlawful and include the following:
- Confidentiality rules specifically regarding wages, benefits, or working conditions; and
- Rules against joining outside organizations or voting on matters concerning the employer.
With the General Counsel's published guidance, now is as good a time as any to dust off your employee handbooks and consider engaging counsel to conduct a thorough review of all employment policies. If you are interested in having our firm review your employee handbook, please contact
Philip Siegel
by clicking
here
, or you can reach him directly at (404) 469-9197.
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DOL Provides Guidance on Travel Pay, Compensable Work Breaks
The Department of Labor recently issued two wage and hour-related opinion letters that provide guidance to employers on issues that had been somewhat unclear. The first deals with payment for and calculation of travel time for hourly employees with no fixed daily schedule. The second addresses whether rest breaks required by the Family and Medical Leave Act count as compensable time under the Fair Labor Standards Act.
Opinion Letter FLSA 2018-18 deals with travel pay for hourly employees without a stated fixed work schedule. In this letter, DOL first confirmed a number of long-standing rules concerning the compensability of travel time, including that ordinary commuting time is not compensable, but travel time between work sites that cuts across normal working hours is compensable. The concept of "normal working hours" was the issue in this letter. The hourly service technicians described in the request typically do not have a fixed schedule. They often travel out of town and service equipment at several sites before returning to their home. The question concerned determining what constituted normal working hours for calculating compensable travel time.
In such situations, DOL provided three alternatives for determining normal work hours. First, the employer can review the employee's times records and determine whether those records reveal a pattern of typical work hours. If the records do not reveal normal working hours, the employer can choose average start and end times to establish a normal workday. As a third alternative, in the rare case where an employee truly does not have normal working hours, the employer and employee can reach an agreement as to a reasonable amount of time or timeframe in which travel is compensable. Although DOL recognized that these are not the only permissible methods for determining normal work hours, if an employer uses any of these methods, the DOL will not find a violation for compensating travel time only during these working hours.
In the second letter, FSLA2018-19, DOL addressed a situation in which an employee was entitled to rest breaks of 15 minutes per hour, being required due to a serious health condition and thus covered under the FMLA. The question was whether these rest breaks had to be compensated. DOL confirmed that FMLA provides that employees are entitled to up to 12 workweeks of leave time per year for certain family and medical conditions. Such leave time may be taken in increments of weeks, days, hours, or even less than an hour. Such leave time may be unpaid if the employee does not substitute paid leave time.
DOL confirmed that occasional rest breaks (up to 20 minutes) are generally compensable because the breaks predominantly benefit the employer by increasing efficiency and because they are based on common industry practice. However, the FMLA rest breaks in this case differ significantly from ordinary rest breaks. Because they are provided to accommodate the employee's serious health condition, these breaks primarily benefit the employee. As such, they are non-compensable. This is consistent with the FMLA provision that leave may be unpaid. Note, however, that the employee entitled to FMLA breaks is also entitled to receive the same compensable work breaks as coworkers receive.
Although these letters confirm existing law and policy, they also provide guidance in areas that were lacking previously. However, they are specific to the particular facts represented in the requests submitted, and accordingly, every situation must be carefully reviewed and analyzed to determine the proper application of the rules. If you have questions about any of the issues presented by these letters, please contact either Philip Siegel by clicking here or Scott Calhoun by clicking here.
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