Employer Law Report

New CDL rule offers smoother transition to civilian careers for veterans and opportunity to address driver shortage in transportation industry

The American Trucking Association (ATA) estimates that the for-hire trucking industry faced a driver shortage of nearly 48,000 drivers at the close of 2015. The effects of this shortage can be felt across nearly every sector of the U.S. economy with roughly 70 percent of all freight moving by truck. Industry advocates have noted that even a modest improvement in the economy could increase freight volumes and further exacerbate the shortage. Continue Reading

The door may be open for county or municipal government “right-to-work” laws in Ohio

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law. Continue Reading

OSHA retaliation rules are going forward

On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an accident are improper. Instead, OSHA says that to be proper post-accident drug testing must be limited to circumstances where the facts at least suggest the possibility that alcohol or drug abuse played a part.

These two provisions had employers scrambling to review incentive and drug testing programs, and evaluating whether to make changes. Then a number of business interest groups filed a lawsuit in federal court in Texas seeking an injunction to stop these aspects of the rule form being enforced.

As we noted in our October 27 article, OSHA agreed to delay enforcement until Dec. 1, 2016 to allow the Court time to make a ruling on the request for an injunction. In his decision Monday, the Judge concluded that there has been no showing that enforcement of the rules would cause irreparable harm to business interests if they become enforceable now. The fact that the judge refused to issue an injunction at this time does not mean the case is over. If the case is not settled or dropped, the Court will hold a trial and consider the arguments on all of the merits. That could result in the rule being approved by the Court or disapproved at some later date.

The short-term effect of the Judge’s decision is that, as of Dec. 1, 2016, OSHA is free to enforce all aspects of the new rule. That means that in OSHA inspections, companies likely will be asked to produce any drug testing programs and incentive programs they have in place. If those programs run afoul of the rule, OSHA will likely issue citations and insist on policy modifications. Companies should review incentive programs and consider eliminating any aspect which conditions rewards on the rate of reported injuries. Companies should also review drug testing programs and consider revisions so that drug and alcohol testing does not occur automatically in every post-accident circumstance, but only in those where the facts suggest the possibility that drugs or alcohol were involved.

We will continue to watch this issue and report on future developments.

EEOC issues new guidance on national origin discrimination

On Nov. 21, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new and updated Enforcement Guidance on National Origin Discrimination, replacing its 2002 guidance on the subject.

In the guidance, the EEOC defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.” This includes discrimination because of an individual’s “place of origin” such as a country, a former country (e.g., Yugoslavia) or a geographic region closely associated with a particular national origin group (e.g., Kurdistan). Further, a “national origin” or “ethnic” group is a “group of people sharing a common language, culture, ancestry, race and or other social characteristics,” such as “Hispanics, Arabs or Roma.”

Under the guidance, discrimination includes treating persons less favorably because they do not belong to a particular ethnic group, as well as because they do. Employees are also protected from discrimination because they associate with someone of a particular national origin (e.g., by marriage). The EEOC also takes the position that national origin discrimination can be based on an individual’s “perceived” status as a member of an ethnic group. However, as we explained in a recent blog based on the Longoria decision in the Northern District of Ohio federal court, few courts (including none in Ohio) have recognized such a theory of liability. Continue Reading

Texas court enjoins new salary basis rule set to go into effect December 1st

As of yesterday, employers who have not yet fully implemented changes in preparation for the new salary basis increase should put those plans on hold because a Texas federal court issued a nationwide preliminary injunction against the rule while it evaluates the legality of the rule. The salary required for exempt status for executive, administrative, and professional employees  (EAP or white collar employees) will remain at $23,660 or $455 per week. (Employees, of course, must meet the respective duties tests.) Any employers who had planned to raise exempt employees’ salaries to $47,476 or convert them to non-exempt status can place those plans on indefinite hold. We recognize, however, that it may be difficult and bad for employee relations to roll back already announced or implemented salary increases. Each employer should evaluate the financial and good will costs of rolling back salary increases made to comply with the new rule or keeping them in place. Continue Reading

November election results likely will significantly impact labor and employment law in coming years

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law. Continue Reading

Decision on whether to block DOL salary basis increase to $47,476 per year expected by Nov. 22

After a hearing in the Eastern District of Texas on a lawsuit by 21 states to enjoin the Department of Labor’s scheduled increase of the minimum salary level for exempt status under the Fair Labor Standards Act (FLSA), the federal judge hearing the case indicated that he will rule by Nov. 22, 2016. As you know, the rule is set to go into effect on Dec. 1, 2016. For those exempt employees with salaries below $47,476, many employers are weighing whether to implement salary increases up to the new threshold or convert the employees to non-exempt status. Non-exempt status would require hours tracking and make the employees eligible for overtime for hours worked over 40 hours per week.

Any employers who have not already implemented or communicated these changes may want to wait until after Nov. 22 when this court decision is expected. We will update you if these efforts to halt the change in the minimum salary basis are successful.

Important update regarding the DOL’S Persuader Rule: Texas District Court issued a permanent, nationwide injunction blocking it

When we last reported on the status of the U.S. Department of Labor’s controversial “Persuader Rule,” it was to inform you that on June 27, 2016, a federal district court in Texas had issued a preliminary injunction that temporarily blocked the DOL’s new interpretation of the rule from taking effect. We are pleased to report that yesterday that same court converted the preliminary injunction into a permanent order blocking the new rule’s implementation. The Texas District Court’s order is national in scope.

U.S. District Judge Sam R. Cummings granted summary judgment to Texas and nine other states, as well as various business groups that sought to invalidate the DOL’s new interpretation of the rule which would have required employers to notify the agency when they hire consultants, including attorneys, in response to union organizing efforts. When Judge Cummings issued the preliminary injunction in June 2016, his order stated that the DOL’s new interpretation of the rule was improper because the DOL did not have the statutory authority to enforce its new interpretation and because its interpretation was “arbitrary, capricious, and an abuse of discretion.” Additionally, the interpretation unconstitutionally curbed and chilled employers’ and attorneys’ free speech and association rights as protected by the First Amendment.

In ordering that the preliminary injunction granted on June 27, 2016, become permanent, Judge Cummings evidenced that he was unpersuaded by the DOL’s arguments that the preliminary injunction should be lifted. The DOL can appeal the permanent injunction to the United States Court of Appeals for the Fifth Circuit. However, even if the DOL does file an appeal, it is unlikely that the Court of Appeals would issue a decision prior to President-Elect Trump taking office, after which time the appeal could be withdrawn. It appears that employers and their legal counsel dodged a bullet on this one.

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

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