Workforce Bulletin

As the clock ticked down and the apple dropped to start a new year, many of us reflected on the year that had passed and our resolutions and New Year's wishes for the upcoming year.  Probably not many of you were thinking about your resolutions and New Year's wishes as they related to everybody's favorite regulatory agency, OSHA, so let us do that for you.  Here are three New Year’s wishes about OSHA enforcement that the national OSHA Practice Group at Epstein Becker & Green hopes to see come true in 2014 for our clients and friends in Industry:

1.      We wish for OSHA to drop or amend its proposed changes to the Injury & Illness Recordkeeping rule.

Late last year, OSHA proposed some major changes to its Injury and Illness Recordkeeping regulations. The proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics in a special survey.  Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public.  Here are the major provisions of the proposed rule:

• Requirements for Large Employers: The new rule will require employers with 250 or more workers to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report.  OSHA would then post the data on its public website after redacting only injured employees’ identifying      information.
• Requirements for Small Employers: The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize.

We anticipate that the new reporting requirements and publication of employers’ injury records will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community, including: (i) extraordinary burden on employers to comply; (ii) more inspections and citations by OSHA; (iii) discourage employers from recording all recordable injuries; (iv) invasion of injured employees’ privacy; and (v) harm to employers’ reputations.  The public perception of certain employers may be skewed because this reported information would be publicized. Specifically, under the proposed rule, OSHA would only make public the basic data provided in injury and illness recording forms.  The public, therefore, could take the injury and illness data out of context, as the public would not be privy to the details behind injuries, safety measures employers adopt, how the data compares to industry averages, or any other relevant information related to the circumstances of the injury or illness.  For more information about the proposed rule and its potential impacts, check out our article from last month.

Our New Year’s wish for the regulated community is that this rule not be implemented, or at least for the “publication” element of the rule to be stricken.  OSHA is accepting public comments on the proposed rule as written and several alternatives published in the Federal Register. Considering the extensive impact the proposed rule will have on employers, industry participation in the comment stage of the rulemaking process, especially with the help of experienced OSHA counsel, will be essential in driving fundamental and necessary revisions to the proposed rule.

2.      We wish for OSHA to change the way it implements the Severe Violator Enforcement Program to respect Constitutional Due Process.

As one would expect for a program designed for recidivists, the punitive elements of OSHA’s Severe Violator Enforcement Program (“SVEP”) are significant, including: (a) inflammatory public press releases branding employers as a “severe violators”; (b) adding employers’ names to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) enhanced terms in settlements (such as corporate-wide abatement, requiring third party audits, etc.).

Our major frustration with the SVEP is not with the severity of the consequences, it is with the timing in which employers are “qualified” into the Program.  As OSHA currently implements the SVEP, employers are qualified into SVEP before final disposition of the underlying citations.  In other words, employers begin to face the harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP.  We have written extensively about the SVEP here on the OSHA Law Update Blog.  For more information, check out any of these articles.

Our New Year’s wish that OSHA amend the Severe Violator Enforcement Program to delay qualifying employers into the Program until the underlying qualifying citations become a Final Order of the OSH Review Commission.  In the alternative, we wish for a Court to evaluate and strike down the Constitutionality of this element of SVEP.

3.      We wish for OSHA to revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at non-union worksites.

Last year, OSHA issued a formal Interpretation Letter of its regulation governing who may participate in OSHA walkaround inspections (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees).

By: Maxine Neuhauser

Retail industry employers are likely to be particularly impacted by amendments to the New Jersey Law Against Discrimination (“LAD”), which became effective January 22, 2014.  The primary focus of the amendments was the addition of pregnancy as a protected classification and the requirement for employers to provide reasonable accommodation to allow women to maintain a healthy pregnancy or to recover from childbirth.[1] Employers should be aware, however, that the new law also added a provision to the LAD expressly prohibiting employer retaliation ...

By: Maxine Neuhauser

Hospitality industry employers are likely to be particularly impacted by amendments to the New Jersey Law Against Discrimination (“LAD”), which became effective January 22, 2014. The primary focus of the amendments was the addition of pregnancy as a protected classification and the requirement for employers to provide reasonable accommodation to allow women to maintain a healthy pregnancy or to recover from childbirth.[1] Employers should be aware, however, that the new law also added a provision to the LAD expressly prohibiting employer retaliation ...

February 1^st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the industries partially exempted from OSHA's Injury & Illness Recordkeeping regulations at Appendix A to Subpart B of Part 1904).  Specifically, by February 1^st every year, employers are required

by OSHA’s Recordkeeping regulations to:

1. Review their OSHA 300 Log;
2. Verify that the entries are complete and ...

My colleague Jason Kaufman and I put together “Five Hot Topics for Financial Services Industry Employers” in this month’s Take 5 newsletter.  Below is an excerpt:

The economy may be improving, but challenges remain for employers in the financial services industry. From ever-increasing whistleblower claims to new diversity and inclusion regulations and recent IRS determinations affecting bonus payments, financial services industry employers will have to navigate a number of new developments and potential pitfalls in 2014. Here are five issues to keep an eye on in the new ...

Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide.  In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”).  NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses.  March 8, 2014 is now the deadline by which all interested parties must submit comments

on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014.  For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).

OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances.  That is hardly the most troublesome element of the proposed new rule, however.  OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason.  Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming.  Employers, therefore, are rightfully concerned about the rule.

Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:

1. Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed.  Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, the public could jump to incorrect and harmful conclusions about the employer.
2. Unions will almost certainly use the out-of-context injury and illness information to mislead employees to facilitate organizing campaigns or to advance their interests in contract negotiations.
3. The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving the precise opposite result OSHA was hoping to achieve.
4. Publication of injury and illness records may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.
5. OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault.  OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control.  This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.

Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule.  The literature included with the proposed rule suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense.  Most employers, however, particularly small businesses, still keep injury records in hard copy.  Therefore, the time and expense to comply with the new rule will be far greater than predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year.

Kara M. Maciel, Member of the Firm and co-editor of the Hospitality Labor and Employment Law blog will participate in a panel discussion at the Hospitality Law Conference on February 10, 2014 in Houston, Texas.   In this featured panel  -  "Deciphering Government Regulations (ACA, ADA, WARN Act, Sanctioned Person/Entity Challenges) and Their Impact on Management Agreements", Kara will speak on the following areas affecting hospitality employers:

• Provide an overview of the federal WARN Act, such as the threshold requirements for coverage under WARN; when and to whom hotels must ...

By Jordan B. Schwartz

Virtually all hospitality employers are aware that pursuant to the Fair Labor Standards Act (“FLSA”), they are required to compensate employees for all hours worked. What is not as clear, however, is whether the time an employee spends at training programs, lectures, meetings, and other similar activities should be considered hours worked. As a result, our clients in the hospitality industry often ask whether they are required to compensate employees for time spent in such training activities. 

The short answer to this question is that an employee’s ...

By David Jacobs and Amy B. Messigian

We would like to call your attention to a significant change to the whistleblower statute in California that went into effect on January 1.  The statute, Cal. Lab. Code section 1102.5, has been substantially expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.

California previously protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a ...

By David Jacobs and Amy B. Messigian

We would like to call your attention to a significant change to the whistleblower statute in California that went into effect on January 1.  The statute, Cal. Lab. Code section 1102.5, has been substantially expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.

California previously protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a ...