Workforce Bulletin

By John F. Fullerton III

As we reported on Epstein Becker & Green’s Financial Services Employment Law Blog, the Department of Labor - OSHA announced earlier this month that employees protected by the whistleblower provisions in any one of the 22 statutes administered by OSHA, from claims of retaliation under the OSH Act based on workplace safety and health complaints, to financial fraud whistleblower retaliation under the Affordable Care Act or Sarbanes-Oxley, can now file their retaliation complaints with OSHA on-line.  Specifically, in a December 5, 2013 press release, OSHA revealed a new web-based tool available for whistleblowers to submit their complaints to OSHA directly on-line, and introduced the on-line complaint form itself.

In the press release, David Michaels, the Assistant Secretary of Labor for OSHA, explained that “[t]he ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections.  Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

The online form, which is already live, provides employees an additional, and for many a much easier, way to file a retaliation complaint to trigger OSHA’s investigative process.   Previously, employees had to mail a written complaint, visit an OSHA office in-person, or place a telephone call to 1-800-321-OSHA (6742) or to one of OSHA’s Regional or Area offices.  Now that filing a complaint is faster, more efficiency, and linked to the familiarity of the internet, we expect an increase in the likelihood that some employees, who might not otherwise have filed complaints, may now do so.

The online form asks employees to list or select from a set of choices the basic information about their complaints.  The complaints will then be followed-up on by investigators, who will contact the whistleblowers to obtain any more detailed information needed by OSHA to determine how to proceed against the employer.

This new accessibility to OSHA for whistleblowing on-line is similar to the on-line ease with which employees can provide tips regarding wrongdoing or apply for bounties under some of the same statutes, such as tips to the Securities and Exchange Commission or the Commodity Futures Trading Commission under the Dodd-Frank Act.  This on-line whistleblower retaliation form is another step in OSHA’s broader effort to make employee protections and information about those protections more accessible to the public.  For example, OSHA had already set up a webpage to educate employees about the whistleblower protections available to them.

The online complaint tool and other web-based outreach to employees is having precisely the effect that OSHA desired, as the number of whistleblower complaints filed with OSHA has grown each of the last five years (i.e., ever year under the current Administration), from 2,160 in FY 2009, to 2,920 in FY 2013.  OSHA released a comprehensive data set reflecting whistleblower activity over the past decade.  In addition to growth in the total number of complaints filed, the number of complaint determinations made by OSHA also grew substantially in 2013 – by nearly 15% to 3,272 (up from 2,865  in FY 2012).  In 2013, however, case determinations by OSHA were much more likely to be made in favor of the whistleblower than in recent years.  Still, cases that OSHA found to have “merit” continue to be rare  --  only 2.3% (or 76 complaints) in FY 2013 were found to have merit.

Our colleague Jang H. Im recently published an article, "The $34 Million Question: What All IT Consulting Companies Should Learn from the Infosys Settlement," pointing out key lessons that all companies, including financial services employers may learn from InfoSys’ immigration issues with the U.S. Department of Justice and the precautionary measures employers should take.

The article is broken down as follows:

1) Beware the Whistleblower
2) Do Not Neglect the Legal Limits on the B-1 Visa Classification
3) Follow the H-1B Requirements Even After Approval
4) Follow the I-9 ...

Last month, the Occupational Safety and Health Administration (“OSHA”) put out a press release announcing a proposed new rule that would significantly increase employers’ injury and illness recordkeeping and reporting responsibilities.  OSHA first submitted its proposal to the Office of Information and Regulatory Affairs (“OIRA”) two years ago, on November 22, 2011, but OIRA did not approve the proposed rule to advance through the rulemaking process until last month.

In essence, 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 (“BLS”) for survey purposes.

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.  Dr. David Michaels, the Assistant Secretary of Labor for OSHA, has expressed publicly that “[t]his is not an enforcement initiative,” but employers are rightfully concerned about the ramifications of this new proposed rule.

OSHA’s Current Reporting Practices

Currently, OSHA compels employers to report a workplace injury or illness to OSHA or to produce injury and illness recordkeeping data to OSHA or the BLS in only four circumstances:

1. the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
2. the recordkeeping data (e.g., OSHA 300 logs, 300A Annual Summaries, or 301 incident reports) is requested or subpoenaed during an enforcement inspection by OSHA at the employer’s workplace;
3. the recordkeeping data is requested pursuant to OSHA’s Data Initiative Survey specific to certain industries with high rates of occupational injuries and illnesses; and
4. recordkeeping forms are requested by BLS for its Survey of Occupational Injuries and Illnesses, for which a select few representative employers are requested to participate each year.

In conjunction with the new rulemaking, OSHA claims that these four outlets for the Department of Labor to acquire injury and illness data are insufficient because the information is generally not collected timely, is too limited in scope, and is often not establishment-specific.  OSHA believes that the proposed rule, detailed below, would resolve these so-called insufficiencies.

Provisions of the Proposed Rule

OSHA’s new Recordkeeping rule proposal contains three major provisions:

1. Requirements for Large Employers (250+ Employees):  If implemented, the new rule will require employers who had 250 or more workers (including full-time, part-time, temporary, and seasonal workers) at peak employment during the prior calendar year 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.  Employers will submit this information through a secure website using direct data entry into a template form or by uploading electronic documents already maintained by the employer.  Approximately 38,000 private employers nationwide would be covered by this provision, and OSHA predicts the cost to each of these employers would be only approximately $183 per year.
2. Requirements for Small Employers (20+ Employees):  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.  Employers will submit this information through the same secure website using direct data entry or through a batch file upload.  This portion of the proposed rule projects to impact approximately 441,000 employer establishments, and OSHA estimates the cost at only approximately $9 per employer per year.
3. Requirements for All Employers:  Under the proposed rule, any employer who receives notification of a request from OSHA must submit information from its injury and illness records (i.e., 300 Logs, 301 forms, and 300A Annual Summaries) for the time periods specified in OSHA’s notification.  This provision only requires submission after notification by OSHA.  Through this provision, OSHA intends to collect data specific to certain industries or hazards.

Dr. Michaels has stated that the information collected from employers through these three data-collection provisions will be used to help employers better identify and eliminate hazards, determine where OSHA’s consultation and educational resources should be focused, and direct inspection priorities.  OSHA has also suggested that the proposed rule imposes only a slight burden on employers, because those subject to the proposed rule are already required to record the information now being demanded for production.

We anticipate, however, that the new reporting requirements and publication of employers’ records as set forth in the proposed rule will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community.

Top 5 Impacts to Industry From the Proposed Recordkeeping Rule

1. Unforeseen (Grossly Underestimated) Costs of Compliance:  We are deeply concerned about the inaccuracy of OSHA’s cost estimates around this rule.  In addition to the burdensome steps outlined in the rule, the proposed rule will likely require employers to take additional steps outside of those described by OSHA to comply.  For instance,

By Jennifer Nutter and Amy Messigian

’Twas the night before the holiday party and all through the halls,
Human Resources was stirring, and posting on walls!
The policies were hung on the blackboard with care with the knowledge that 2014 soon would be there!

Like a holiday carol sung every December, a tune repeats this December for California employers as in years past:  review your policies.  In light of the bevy of new laws that take effect on January 1, it is time to conduct a handbook and policy review to ensure compliance as the new laws roll out.

Employers should be mindful of the ...

With my colleagues Peter Stein and Dean Singewald II, I recently coauthored an advisory for employers in the financial services industry: Dodd-Frank Standards Proposed for Assessing Diversity Policies and Practices of Covered Entities in the Financial Services Industry.

Following is an excerpt:

Six federal agencies ("Agencies") subject to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Act") issued much-anticipated jointly proposed standards in accordance with Section 342 of the Act for assessing the diversity policies and practices of the ...

By: Anna A. Cohen and Nancy L. Gunzenhauser

It’s that time of year! As the new year rolls in, 13 states are increasing their minimum wage. Unless noted otherwise, all increases to the minimum wage reflected below will become effective on January 1, 2014.

On Tuesday, December 3, 2013, in conjunction with the Grain Journal, Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on the OSHA enforcement landscape related to work on top of rolling stock (specifically railcars) at grain elevator facilities.  The webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.  The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.

Here is a link to the recording of the Railcar Fall Protection ...

The Department of Labor (DOL) announced yesterday that whistleblowers covered by any one of 22 statutes administered by the Occupational Safety and Health Administration – which includes whistleblower retaliation complaints under Section 806 of the Sarbanes-Oxley Act (SOX) -- can now file complaints online.  Section 806 of SOX affords protection to employees who have allegedly suffered an adverse action because they complained, externally or even just to their supervisor, that the company has committed a violation of various fraud statutes (frauds and swindles, wire fraud ...

In a recent Law360 article, "NLRB Social Media Push Looms Large for Hospitality Sector" (subscription required), our colleague Mark Trapp comments on the importance for unionized and non-unionized hospitality employers to review their social media policies.

Following is an excerpt:

With the National Labor Relations Board increasingly interjecting into non-union issues, hotels, restaurants and other labor-intensive hospitality companies need to brace for potential claims and tread carefully when crafting social media policies for employees, experts say.

Over the last ...

By Nancy L. Gunzenhauser and Jeffrey M. Landes

It’s performance review season…meaning reports of various performance review systems are making headlines for employers. In a recent survey by OnForce, former technology employees turned-independent contractors stated that performance reviews were one of the least missed aspects of working as employees, only behind commuting. Performance reviews come in various types, with some causing more controversy than others. One of the most controversial types of performance review systems is the bell-curve (aka “forced” or ...