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Please Keep Those Government Agencies Off My Back!

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Speaker: Jon Hyman Partner Myers, Roman, Friedberg & Lewis

Moderator: Ladan Nikravan

Senior Editor Workforce magazine


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Ladan Nikravan Senior Editor Workforce magazine


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Jon Hyman Partner Myers, Roman, Friedberg & Lewis


Please Keep Those Government Agencies

Off My Back!

Jonathan Hyman

How Do You Spell Activist?

What’s on the EEOC’s Radar?

EEOC Strategic Enforcement Plan for Fiscal Years 2012 – 2016

http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm

EEOC v. Kaplan Higher Learning Educ. Corp., Case No. 1:10 CV 2882, 2013 U.S. Dist. LEXIS

11722 (N.D. Ohio Jan. 28, 2013)

Recently Filed Cases Challenging the Use of Criminal Histories in

Hiring

•  EEOC v. BMW Manufacturing Co., LLC, 13-CV-1583 (S.C.)

•  EEOC v. DolGenCorp LLC, 13-cv-04307 (N.D. Ill.)

Disparate Impact!

Prima Facie Case

1.  What is the challenged employment action?

2.  Does it have an adverse impact on the protected group, via relevant statistical analysis

Wards Cove Packing Co. v. San Antonio, 490 U.S. 642 (1989)

Job Related

-and-

Consistent with Business Necessity

No disparate impact if…

42 U.S.C. sec. 2000e-2(k)(1)(A)(i)

When can an employer use Criminal records?

Validation

-vs-

Targeted Screen

EEOC wants…

1. Nature and gravity of offense/ conduct

2. Time passed since offense, conduct, or end of sentence

3. Nature of job held or sought

Green v. Missouri Pacific R.R., 523 F.2d 1290 (8th Cir. 1975)

Factors

Individualized Assessment (per EEOC Enforcement Guidance)

•  Facts or circumstances of offense/conviction

•  Number of offenses convicted

•  Age

•  Post-conviction incidents

•  Work history

•  Rehabilitation efforts

•  References

•  Bonding

•  Contrary to what you may feel/hear, it is NOT OSHA’s mission to make your life miserable! It just might seem that way!

•  Mission –  Congress created OSHA to assure safe and healthful condi6ons for workers by seJng and enforcing standards and providing training, outreach, educa6on and compliance assistance

–  In 1970, an es6mated 14,000 workers were killed on the job (about 38 per day)

–  For 2010, the Bureau of Labor Sta6s6cs reports this number fell to about 4,500 (about 12 per day)

26

OSHA – Their Mission

–  The rate of reported serious workplace injuries and illnesses has dropped from 11 per 100 workers in 1972 to 3.5 per 100 in 2010—during this same 6me period, US employment has doubled in size to over 130 million workers

–  Nonetheless, each year, more than 3.3 million workers suffer a serious job-‐related injury or illness

–  Occupa6onal injuries and illnesses cost American employers more than $53 billion a year—over $1 billion a week—in workers’ comp costs alone

•  How does OSHA accomplish their mission? –  Poster requirements –  Audits/record keeping requirements –  Enforcement/Inves6ga6ons –  Training –  Specialized Assistance Programs

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OSHA’S Mission

•  Section 5(a)(1) of the Act requires that “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The general duty requirement also exists for federal agencies.

• OSHA further requires that employers must first try to eliminate or reduce hazards by making feasible engineering or administrative changes in working conditions rather than relying on personal protective equipment such as masks, gloves, or earplugs.

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General Duty Safety Clause

Since OSHA cannot possibly inspect all seven million workplaces, it must focus on the most hazardous ones in the order of priority: 1. Imminent Danger Situa6ons 2. Fatali6es and Catastrophes 3. Complaints 4. Referrals from Other Agencies 5. Follow-‐ups 6. Planned Programmed

Inves6ga6ons 7. Phone/Fax Inves6ga6ons

29

OSHA INSPECTIONS— Why do they come knocking?

•  OSHA periodically will publish and more stringently investigate/enforce safety standards relating to certain high risk workplace conditions or industries

30

Na6onal & Special Emphasis Programs

•  Current active programs—National:

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Na6onal Emphasis Programs

Combus6ble Dust Trenching & Excava6on Silica Federal Agencies Hazardous Machinery Nursing & Residen6al Care Facili6es

(expires 4/15) Hexavalent Chromium Primary Metals Industries Lead Process Safety Management Isocyana6s Shipbreaking Amputa6ons

Current active programs—Region 5:

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Local Emphasis Programs

Building Renova6on / Rehabilita6on and Demoli6on

Powered Industrial Vehicles

Fall Hazards in Construc6on and General Industry

Dairy Farm Opera6ons

High Rise Building Construc6on Inspec6ons in Chicago

Grain Handling Facili6es

Carbon Monoxide Hazards in Construc6on Federal Agencies

Tree Trimming Opera6ons Wood Pallet Manufacturing Industry

Mari6me Industries Lead

Silica

33

Top 10 Common Viola6ons

1. Fall Protec6ons

2. Hazard Communica6on

3. Scaffolding

4. Respiratory Protec6on

5. Lockout/Tagout

6. Powered Industrial Trucks

7. Electrical, Wiring Methods

8. Ladders

9. Machine Guarding

10. Electrical, General Requirements

The Anatomy of an OSHA Inves6ga6on

•  Warrant vs. no warrant entry requests. Union vs. Non-Union Environments

•  CALL YOUR ATTORNEY OR SAFETY CONSULTANT!! •  How to handle the inspection (badge, initial meeting, walk

around, interviews, document requests, closing conference) •  What to do if/when you receive any citations/fines (Informal

Conference v. Notice of Contest)

34

•  Make sure you have done everything possible to have a safe workplace BEFORE you are inspected.

•  OSHA is knocking on your door—now what? •  What triggered the inspection? 60+% of the

time it is employee complaints.

•  Willful (not more than $70,000 for each viola6on, but not less than $5,000) – A viola6on in which the employer knew that a hazardous condi6on existed but made no reasonable effort to eliminate

•  Serious (up to $7,000 for each viola6on) – Exists when the workplace hazard could cause injury or illness that would most likely result in death or serious harm (unless the employer did not or could not have known of the viola6on)

35

Types of OSHA Viola6ons

•  Other-‐Than-‐Serious (up to $7,000 for each viola6on) – Defined as a situa6on in which the most serious injury or illness that would be likely to result from a hazardous condi6on cannot reasonably be predicted to cause death or serious physical harm, but does have a direct and immediate rela6onship to their safety and health.

•  De Mimimis (up to $7,000 for each viola6on) – Viola6ons that have no direct or immediate rela6onship to safety or health

36


•  Failure to Abate (up to $7,000 for each viola6on) – Exists when employer has not corrected a viola6on for which OSHA issued a cita6on and the abatement date has passed or is covered under a senlement agreement.

•  Repeated (not more than $70,000 for each viola6on, but not less than $5,000) – If employer has been cited within the last five years for a substan6ally similar condi6on and the cita6on has become a final order of OSHA Review Commission.

37


•  Exempt vs. Non-Exempt Misclassifications – Executive, administrative,

professional, outside sales, and high-level computer employees

– Companies trying to avoid fringe benefits, OT, vacation and sick accruals and employee taxes

•  Independent Contractor status •  Unpaid Interns and Volunteers

Misclassifications – If it Walks Like a Duck and Quacks Like a

Duck ...

39

•  Behavioral Control –  Instructions the business gives worker –  Training the business gives worker

•  Financial Control –  Extent to which worker has unreimbursed expenses –  Extent of worker’s investment –  Extent worker makes services available –  How the business pays worker –  Extent to which worker can realize profit or loss

•  Type of Relationship –  Written contracts describing relationship –  Whether business provides worker with employee-type benefits –  Permanence of the relationship –  Extent to which services performed by worker are key aspect of regular

business of the Company

IRS Independent Contractor Test

Misclassifications–Independent Contractor Test

•  Qualifications for Unpaid Interns – Similar to educational training – Experience benefits the intern –  Intern does not displace other employees – Employer derives no advantage – Not entitled to a job after the internship – Mutual understanding that intern is not entitled

to wages

Misclassifications—Unpaid Interns

41

Since September 2011, the Wage and Hour Division has collected millions in back wages, primarily for minimum wage and overtime violations under the FLSA, which resulted from thousands of workers being misclassified as independent contractors, interns or otherwise not properly treated as employees. •  Grant v. Warner Music Group Corp. (Interns - 2014) •  Glatt v. Fox Searchlight Pictures, Inc. (Interns - 2011) •  Ruiz v. Affinity Logistics Corp. (IC - June 2014) •  Margulies v. Legends Football League (IC - June 2014)

42

Misclassification Lawsuits

•  Brown v. ScriptPro, LLC – Company was sued by an employee for “off the clock” time that was not submitted as required by Employer. Court found for Employer.

•  White v. Baptist Memorial Health Care Corp.—Hospital was sued by employee who worked through meal breaks. Hospital policy required employees to use/fill out records to show they worked OT or during meal breaks. Court found for Employer.

43

Off-the-Clock / OT Recording

•  DOL Wage and Hour App – Clear reminder to employers

to ensure FLSA recordkeeping is in order

– Helps employees create records of their claimed hours worked

– Currently only works with iPhones/iPod Touch (Blackberry, Android versions not available)

44

Smart Phone Apps

•  DOL has not said whether it will consider employer’s records to be inaccurate merely because employee’s own records differ.

•  DOL gimmick / public relations move? •  Employees have always been able to keep

track of their own time (pencil and paper, calendar, etc.)

45

Smart Phone Apps

Facebook Firings

Dilbert, 9/13/2010 http://dilbert.com/strips/comic/2010-09-13/

Protected Concerted

Activity

Protected Concerted

Activity (Overly Broad)

Social Media Policies

Ambush Election Rules

Joint Employers

www.ohioemployerlawblog.com Twitter: @jonhyman

linkedin.com/in/jonathanhyman Facebook: ohio.employer.law.blog

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please keep those government agencies off my back!

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