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As the COVID-19 pandemic continues to impact businesses across the country, employers are faced with the difficult question of how to keep their workplaces safe. Some employers are attempting to restrict off-duty employee conduct to limit high-risk behavior.

The National Football League (NFL) is one employer taking steps to regulate off-duty conduct to reduce risks associated with the COVID-19 pandemic. The NFL has apparently reached an agreement with the players’ association that restricts the players’ off-duty conduct in some surprising ways. Players are prohibited from attending indoor night clubs, concerts, and even indoor religious services that allow attendance above 25 percent capacity. If a player violates these rules and then tests positive for COVID-19, he will reportedly not be paid for any games he misses and future guarantees in his contract will be voided. The NFL and the players’ association have presumably entered into this agreement for two chief reasons: to minimize COVID-19 outbreaks among teams and, in turn, to increase the likelihood that NFL football can be played this season. Commentators have thrown some challenge flags at the agreement, however, due to its potential for punishing employees for engaging in lawful off-duty activities.
Continue Reading NFL is tackling off-duty conduct to reduce COVID-19 spread. Can your business, too?

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.”…
Continue Reading Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

The compliance deadline for Occupational Safety and Health Administration’s (OSHA) electronic injury and illness reporting rule has come and gone, and there is no mechanism in place for employers to electronically report work-related injuries and illnesses. On June 27, 2017, OSHA proposed moving the July 1, 2017 mandatory compliance deadline to Dec. 1, 2017. The window for public comment on the proposed delay closed on July 13th. At present, the “proposed delay” remains a “proposal,” but, even so, OSHA does not yet have the mechanism in place for compliance with the electronic reporting requirement.

For many years, OSHA required employers with 10 or more employees to keep a log of employees’ work-related injuries and illnesses, but most employers were not required to routinely submit them to OSHA. Only certain high-risk industries, such as construction, manufacturing and agriculture, were required to submit their records to OSHA by mail. In 2013, OSHA decided to move to an electronic reporting system and increase the number of employers required to submit their illness and injury logs to OSHA. Had the rule taken effect, establishments with 250 or more employees would have been required to submit their 2016 Form 300A by July 1, 2017. These same employers would have been required to submit all of their 2017 forms (300A, 300 and 301) by July 1, 2018. Smaller employers with 20-249 employees in moderate-risk industries, such as waste collection, residential care facilities and retail sales, would have been required to submit only the 300A on an annual basis beginning on July 1, 2017.…

Continue Reading OSHA proposes delay to electronic injury reporting requirement and no mechanism in place on OSHA’s website for electronic reporting compliance

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the en banc decision, the full 8th Circuit refused to enforce the NLRB’s unfair labor practice finding and held that an employer may fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The court emphasized that “allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business” and that the fired MikLin employees made a conscious decision maximize this effect by choosing to launch their attack during flu season. The court added:

“By targeting the food product itself, employees disparaged MikLin in a manner likely to outlive, and also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave, the image of contaminated sandwiches made by employees who chose to work while sick was not one that would easily dissipate.”

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Continue Reading Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.

Background

Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as an officer in the Navy Reserve. Throughout his employment, FedEx allowed Savage leave for military duties and permitted him to complete military computer training while at work. In 2012, Savage began complaining about the calculation of his pension benefits as it related to breaks in service for military leave.…

Continue Reading FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits

The Occupational Safety and Health Administration (OSHA) announced recently that it intends to delay the initial deadline for compliance with its rule requiring employers to report accident and illness records to OSHA electronically. Under the original deadline, employers with over 250 workers and smaller employers in high hazard industries would have been required to begin electronic filing of certain OSHA-required forms on July 1, 2017. For a more detailed discussion of the electronic recordkeeping rule, go here. That deadline is now off and OSHA has promised a formal notification in the future with more information about revised deadlines.
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Continue Reading OSHA delays electronic reporting requirement start date

In a follow up to its Whole Foods Market, Inc. decision, which found unlawful an employer policy prohibiting workplace recordings by employees without prior management approval, an NLRB panel majority in Mercedes Benz U.S. International, Inc. denied the General Counsel’s motion for summary judgment on a similar “no recording” policy. According to the majority, Mercedes was entitled to a hearing, which would provide an opportunity to present evidence regarding its business justifications for the policy, and about whether the policy was communicated or applied in a manner that clearly conveyed an intent to permit protected activity.

Member Pearce dissented, arguing that the employer’s policy which prohibited the use of cameras and video recording devices in the plant without prior authorization, was facially overbroad and did not provide any exceptions for protected concerted activity. As such, according to Member Pearce, the policy tends to impermissibly chill employee expression and therefore was unlawful regardless of the employer’s intent in adopting and implementing the policy and regardless of whether employees actually interpreted the policy as restricting their Section 7 rights.…

Continue Reading NLRB panel majority upholds employer right to justify “no recording” policy; denies general counsel summary judgment motion

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.
Continue Reading OSHA retaliation rules are going forward

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here. 

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

With Valentine’s Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won’t bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually involved that can get burned when it comes to workplace romances. Most often, it is the employer that feels most the heartburn when workplace romances turn sour. Because romantic workplace relationships will develop, regardless of what an employer does to try to stop them, here are some thoughts about how to protect your workplace and avoid the inevitable sexual harassment lawsuit.
Continue Reading Hunka Hunka Burning Love. How Employers Stop the Heartburn of Workplace Romances and Avoid Litigation