Employer Law Report

Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and later pushed back to Nov. 1, 2016. A lawsuit has been filed in the Northern District of Texas that could result in the anti-retaliation rules being delayed further or struck down. As a result of this lawsuit, OSHA has again postponed the effective date of the anti-retaliation provisions, which are now set to be effective Dec. 1, 2016. It is likely the court in Texas will act during November on the case. We will follow this lawsuit closely and report any developments or further delays. Importantly, although the lawsuit challenges certain aspects of OSHA’s interpretations of the retaliation aspects of the law, it does not have any impact on the electronic recordkeeping effective dates as we reported them in May. Continue Reading

Ohio federal court rejects perceived national origin discrimination claim

A special thanks to Adam Bennett for his assistance with this article.

An Ohio federal court in Longoria v. Autoneum N. Am., Inc. has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer perceived him to be of Mexican national origin. Noting the “widespread failure” of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits. Continue Reading

Above the fray: The employer’s how-to guide on navigating the election season

A special thanks to Adam Bennett for his assistance with this article.

Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they might comply with federal laws regulating political expression in the workplace and Ohio laws regarding voting leave. Continue Reading

DOL releases final rules on paid sick leave for federal contractors

A special thanks to Adam Bennett for his work on this article.

The U.S. Department of Labor recently released its final rule requiring federal contractors and subcontractors to provide their employees with at least seven days of paid sick leave each year. The final rules were published on Friday, Sept. 30 and will go into effect 60 days after publication (Nov. 29, 2016). Despite the “effective date,” the sick leave rule will only apply to federal contractors and subcontractors entering into new contracts where the solicitation was issued or the federal contract was awarded on or after Jan. 1, 2017.

The new rule further is limited to contracts or subcontracts that are:

  • Covered by the Service Contract Act or the Davis-Bacon Act
  • Concessions contracts
  • Service contracts in connection with federal property or lands

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2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the “Cat’s Paw” theory one step further when it upheld an employer’s liability under Title VII when the adverse employment decision was influenced by the retaliatory intent of a low level co-worker who had no supervisory responsibilities.

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DOL issues updated required posters for FLSA and EPPA

The federal Department of Labor (DOL) has issued an updated poster for the “Employee Rights Under the Fair Labor Standards Act” poster, which is a federally required poster. The updated poster adds information on the rights of nursing mothers (to lactation breaks) under the FLSA, misclassification issues related to independent contractors and tip credits. In an effort to move forward with technology, the new poster also includes a scannable QR code which take employees to the DOL website for information on compliance with the FLSA as well as instructions on how to file a complaint. The poster is available here. It is also available in different formats and in 10 different languages.

The DOL also has issued an updated Employee Polygraph Protection Act (EPPA) poster, which is also a federally required poster. It is identical in content to the prior version except for the QR code and removing a prior reference to the amount of the penalty for a violation. The poster is available here. It is also available in Spanish.

As a reminder, the DOL issued an updated FMLA poster in April 2016. If you have not already updated that poster, it is available here. There is also a Spanish language version.

If you utilize an “all-in-one” poster, printing these updated posters and posting them on top of the outdated sections within the all-in-one poster will satisfy the requirement. Each of these postings are required by federal law. The EPPA and FLSA posters apply to all employers. The FMLA poster applies only if the FMLA applies to the employer—triggered by having 50 or more employees—and should be posted even if no work location has 50 or more employees within 75 miles. Any small business with questions about which posters are applicable to its business can utilize a poster advisor tool on the DOL’s website, available here.

Employers advised to review drug free workplace policy if they intend to prohibit medical marijuana use

As we outlined more fully in our earlier post, Ohio’s new medical marijuana law takes effect next month. Employers should be reminded that business groups lobbied for an exception allowing employers with drug-free workplace policies to take adverse action against applicants and employees for medical marijuana use.

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Long wait times for Indian nonimmigrant visas merit human resources planning

Special thanks to summer associate Sara Schiavone for her work on this blog post.

Human resource professionals who are managing the immigration processing for Indian nonimmigrant employees should be aware of the increased processing times for the visa application at consulates in India. The extraordinary increase in routine processing for nonimmigrant visas requires significantly more planning to avoid long periods of non-productivity while employees are stranded abroad waiting for a visa appointment.

It was not that long ago that one week was seen as a standard timeframe to receive an interview appointment. However, applicants now experience wait times as long as four months. As of July 2016, current wait times for nonimmigrant visa (NIV) interview appointments other than B (visitor), F (student) and J (exchange visitor) at the following consular posts are: Continue Reading

OFCCP publishes final rules on sex discrimination for federal contractors

As we reported last year, the Office of Federal Contract Compliance Programs (OFCCP) planned to issue a Final Rule updating its sex discrimination regulations for federal contractors and subcontractors for the first time since the 1970s. In doing so, sex discrimination prohibitions for federal contractors have been modernized to include discrimination on the bases of sex, pregnancy, childbirth, pregnancy-related medical conditions, gender identity, transgender status and sex stereotyping. Notably, sexual orientation was excluded from the definition.

The Final Rule amends regulations implementing Executive Order 11246, which prohibits discrimination by federal contractors on sever bases, including sex. The Final Rule applies only to companies that are contractors and subcontractors of a covered federal contract (totaling $10,000 or more over a 12-month period). The Final Rule includes mandatory provisions targeted at prohibiting modern issues of sex discrimination, as well as some advisory “best practices.” Continue Reading

DOL’s Persuader Rule blocked from taking effect – for now

A special thanks to summer clerk Arslan Sheikh for his assistance with this article

On June 27th, 2016, a federal district court in Texas issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new interpretation of the “Persuader Rule.” This injunction, which is national in scope, is a big win for employers and attorneys alike as it provides both parties more latitude to discuss union avoidance issues without being subject to reporting requirements. The Texas court’s decision means that the DOL must continue to exempt an attorney from reporting to the DOL on advice given to clients pertaining to union avoidance and employee relations, as long as the attorney does not communicate directly with non-supervisory employees. For example, this injunction means that an attorney may lawfully, without reporting, prepare documents and speeches for an employer’s use during union organizing, train managers and supervisors through seminars, and develop personnel policies and practices for an employer to implement.

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