HPSS Construction Law News
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OSHA Launches National Emphasis Program to Protect Workers from Indoor and Outdoor Heat Hazard
On April 12, OSHA announced it was launching a National Emphasis Program to protect workers from heat illness and injuries. Through the program, OSHA will be conducting heat-related workplace inspections.
As part of the program, OSHA will proactively initiate inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area. On days when the heat index is 80 F or higher, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job. Inspectors will look for and address heat hazards during inspections, regardless of whether the industry is targeted in the NEP.
In light of OSHA's announcement, construction contractors would be wise to review the many resources available that discuss how to address the heat hazard in the construction setting. OSHA offers its own resources through this link. Among the safety measures construction contractors should be implementing are ensuring a sufficient number of water coolers are on site to allow for drinking of water, providing shaded areas for cooling, and allowing for the acclimatization of workers to the heat.
It is anticipated that OSHA will soon publish a heat hazard standard applicable to the construction industry. When that happens, we will inform you of the same while providing you with compliance assistance.
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Department of Homeland Security Proposes Extension of and Changes to Form I-9 |
On March 30, 2022, the Department of Homeland Security (“DHS”), U.S. Citizen and Immigration Services (USCIS) published notice that it was seeking comments on proposed changes to and the extension of Employment Eligibility Verification Form I-9. The comment period did close on May 31. The current form is scheduled to expire on October 31, 2022.
USCIS is proposing Form I-9 be modified as follows:
· Compress Sections 1 and 2 from two pages to one page to reduce paper use and storage burden on employers.
· Change Section 3 to a Reverification and Rehire Supplement that provides three separate areas to enter reverifications and rehires within 3 years of the date of the initial execution of an employee's Form I-9. Employers would only print and use the supplement as needed, further reducing paper use and storage burdens on employers.
· Update the List of Acceptable Documents to include a link to List C documents issued by DHS and the acceptable receipts listed in 8 CFR 274a.2(b)(1)(vi)(A-C).
· Reduce and simplify the instructions from 15 pages to 7 pages, further reducing paper usage.
· Remove electronic PDF enhancements to ensure that it can be completed on all electronic devices and is not software dependent.
A few other notable changes to the form include the elimination of the “N/A” requirement and the replacement of “alien authorized to work” in the attestation of citizenship or immigration status box with “A noncitizen (other than Items 2. and 3. above),” to comport with the Biden Administration’s Executive Order to replace “alien” with a less “dehumanizing term.”
When the new Form I-9 is published, we will inform you of the same so you may begin using the new Form for your hiring and rehiring.
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Department of Labor is Actively Reviewing Minimum Wage and Overtime Exemptions
The U.S. Department of Labor (“DOL”) is currently reviewing the regulations that implement the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime exemptions. DOL is expected to propose a new salary threshold for “white-collar” exempt employees, those employees exempt from overtime pay under the executive, administrative, and professional exemptions under the FLSA.
Under the FLSA, employees must receive overtime pay of at least 1.5 times their regular rate of pay for any work in excess of 40 hours per week. However, certain employees, including bona fide executive, administrative, and professional employees who receive pay on a salary basis currently over $684 per week, which equates to $35,578 per years, are exempt from the overtime requirement. Any increase to the salary threshold will potentially impact millions of employees across the US.
Back in June 2021, President Biden’s Labor Secretary Martin Walsh stated that the current salary threshold is “definitely” too low and that DOL is actively working on reviewing the FLSA regulations. In December 2021, DOL included in its regulatory agenda a new rule on the salary threshold requirements for the executive, administrative, and professional exemptions under the FLSA. More recently, in just the last two months, DOL has held a series of listening sessions on possible revisions to the overtime regulations for both worker and employer stakeholders. As stated in the announcements, the “goal is to use these sessions to listen, engage the public and hear their perspectives on the possible impact of changes to the regulations.” The sessions have been organized by region and stakeholders can sign up for the upcoming sessions through this link.
Once the listening sessions have been concluded, it is expected that DOL will be issuing a Notice of Proposed Rulemaking increasing the salary threshold for executive, administrative, and professional exemptions.
When and just how much of an increase is unknown at this time. However, regardless of the ultimate increase in the salary level, employers that rely on the white-collar exemptions should be on notice of potential changes. Fortunately, any increase will not happen overnight and will take some time to implement. We will be sending e-blast updates as soon as any Notice of Proposed Rulemaking comes out. So, stay tuned.
If you have any questions regarding FLSA’s minimum wage and overtime exemptions and/or related employee payment practices, please call or email either Philip Siegel or Ben Lowenthal. Philip’s email is pjs@hpsslaw.com and can be reached directly at (404) 469-9197. Ben’s email is bsl@hpsslaw.com and can be reached directly at (404) 469-9177.
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Trump-Era Independent Contractor Rule Reinstated
Under the Fair Labor Standards Act (“FLSA”), classification of workers as either employees or independent contractors can have substantial economic consequences, primarily due to potential overtime owed to employees but not independent contractors. During the Trump Administration, the Department of Labor issued a final rule which applied an “economic realities” test to determine whether a worker was properly classified. The rule was scheduled to take effect on March 8, 2021. However, the Biden Administration first delayed the implementation of the rule and then ultimately withdrew the rule in May 2021. These actions were then challenged in court.
On March 14, 2022 a federal judge in the Eastern District of Texas ruled that the Biden Administration’s attempt to delay and then withdraw the Trump Administration rule was invalid. The DOL failed to provide proper notice and sufficient time for the public to submit meaningful comment. As a result, the Trump-era rule immediately went into effect, pending potential further legal or administrative action.
The rule is intended to clarify the standards established by case law and prior DOL rulings utilizing the six factors of the “economic realities test”. Those factors are:
· The degree of control exercised over the worker
· The worker’s opportunity for profit or loss
· The worker’s investment in the business
· The permanence of the working relationship
· The degree of skill required to perform the work; and
· The extent to which the work is an integral part of the alleged employer’s business
Using these factors provides a framework which likely will result in more workers being classified as independent contractors rather than as employees under the FLSA in comparison to the more rigid and restrictive test favored by the Biden Administration.
Note that this rule does not impact state law determinations of worker classification for wage and hour purposes, nor does it impact the rules or criteria in place with respect to the classification of workers for purposes of other federal laws such as the Internal Revenue Code or the National Labor Relations Act. Also, no decision has yet been announced whether DOL intends to appeal this ruling or engage in a renewed rulemaking process to establish a new rule.
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