Workforce Bulletin

By Epstein Becker & Green’s OSHA Practice Group

OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities.  There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.

The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.”  The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries.  During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.”  OSHA's leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.

Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar.  For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda.  Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.

Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA.  Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013.  This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.

Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs.  Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance.  She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance.  Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.

By:  Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has now acknowledged the significant regulatory burdens that the January 1, 2014 deadline under the Affordable Care Act would place on employers.  Based on reports, the ACA Employer Mandate has been delayed to 2015!  We understand that regulatory guidance will be forthcoming this week.

This is welcome news to employers across the country who have been struggling with compliance efforts under the ACA.

Stay tuned to this blog and www.ebglaw.com for additional information.

By:  Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has now acknowledged the significant regulatory burdens that the January 1, 2014 deadline under the Affordable Care Act would place on employers.  Based on reports, the ACA Employer Mandate has been delayed to 2015!  We understand that regulatory guidance will be forthcoming this week.  

This is welcome news to the hospitality industry and employers across the country who have been struggling with compliance efforts under the ACA. 

Stay tuned to this blog and www.ebglaw.com

By Elizabeth Bradley, Kara M. Maciel & Adam Solander

Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think retail employers will be interested.

Following is an excerpt:

In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for causation ...

Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think hospitality employers will be interested.

Following is an excerpt:

In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for

Our colleague Amy B. Messigian at Epstein Becker Green recently posted “Supreme Court Decision Sets High Bar for Establishing Retaliation Claims Under Title VII” on the Health Employment and Labor blog, and we think financial services employers will be interested.

Following is an excerpt:

In University of Texas Southwestern Medical Center v. Nassar, one of two employment-related opinions issued on Monday by the Supreme Court, a narrow majority held that a retaliation claim brought under Title VII of the Civil Rights Act of 1964 must be proved according to a strict but for

By Julie Saker Schlegel

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII.  Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII. 

Under ...

Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think hospitality employers will be interested. Following is an excerpt:

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment ...