Company Whistleblower Settlements Must Not Gag or Discourage Employees, OSHA Says

The Occupational Safety and Health Administration (OSHA) has published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that settlements do not contain terms that could be interpreted to restrict future whistleblowing. The guidelines, issued Sept. 9, make clear that OSHA will not approve a whistleblower settlement agreement that contains provisions that may discourage whistleblowing without outright prohibiting it, such as:

  • Provisions that require employees to waive the right to receive a monetary award from a government-administered whistleblower award for providing information to a government agency about violations of the law.
  • Provisions that require the employee to advise the employer before voluntarily communicating with the government or to affirm that the employee is not a whistleblower.

OSHA says it also reserves the right not to approve settlements with liquidated damages provisions that it believes are excessive. The new guidance responds to a March 2015 petition for rulemaking from the Government Accountability Project (GAO).

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Oklahoma Becomes 35th State to Join DOL in Fighting Misclassification

The Department of Labor (DOL), its Wage and Hour Division (WHD) and the Oklahoma Employment Security Commission have signed a three-year Memorandum of Understanding (MOU) intended to protect employees’ rights and level the playing field for employers by preventing worker misclassification as independent contractors or other non-employee statuses.

The agencies will jointly provide clear, accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law, according to a press release.

The WHD is already working with the Internal Revenue Service (IRS) and 34 other states to combat employee misclassification and to ensure that workers get the wages, benefits and protections to which they are entitled. Labeling employees as something they are not –- such as independent contractors –- can deny them basic rights such as minimum wage, overtime and other benefits. Misclassification also lowers tax revenue to federal and state governments improperly, and creates losses for state unemployment insurance and workers’ compensation funds, according to the DOL.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Labor Law Compliance Pre-Assessment Available for Companies Seeking Federal Contracts

With a final rule taking effect Oct. 25 requiring companies seeking federal contracts of $500,0o0 or more to reveal any of 14 labor law violations they’ve committed within the past three years, the Department of Labor (DOL) has launched a pre-assessment program.

The new disclosure requirement derives from President Obama’s Fair Pay and Safe Workplaces Executive Order of July 2014.

As a preassessment is not associated with a specific acquisition, it is a proactive and voluntary way for current and prospective government contractors be reviewed on labor compliance history, according to the DOL. Participating in a DOL preassessment:

  • Provides current and prospective contractors the opportunity to be assessed on their labor law compliance history, and how it would be reviewed as part of the acquisition process
  • Serves as a proactive and voluntary measure if there are labor law compliance history concerns, because the contractor can develop a labor compliance agreement and start taking steps to mitigate issues before there is a specific acquisition
  • Will be considered in future acquisitions

Preassessments will continue to be offered after the start date of the new disclosure rule. To sign up, please use the DOL’s online Preassessment Request Intake form.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Seattle Becomes Fourth Northwest EEOC District to Sign MOU with Mexican Consulate

The Equal Employment Opportunity Commission (EEOC) has entered into a memorandum of understanding (MOU) with the Consulate of Mexico in Seattle. This marks the fourth agreement signed between the federal civil rights agency and Mexican consulates throughout the Pacific Northwest, following signings in Portland, Oregon; San Francisco, Calif.; and Boise, Idaho.

In Seattle, Mexican Consul General Roberto Dondisch and EEOC San Francisco District Director William Tamayo signed an agreement renewing their ongoing partnership to provide Mexican nationals with information, guidance and access to resources on the prevention of discrimination in the workplace, regardless of immigration status.

“There is no better way to honor Labor Day than by signing these MOUs affirming the longstanding and beneficial collaboration between the Mexican consulate and EEOC,” said Tamayo. “Together we can work to ensure that vulnerable workers understand their rights and are protected from discrimination.”

According to the state’s Office of Financial Management’s estimates, the Hispanic/Latino population in Washington is 850,276, or 12.2 percent of the total population. Tamayo noted that EEOC’s San Francisco District has recently signed similar agreements with local Mexican Consulates in three other areas with significant Latino populations.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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California to Mandate Farmworker Overtime Pay after 8 Hours in a Day

California Gov. Jerry Brown has signed landmark legislation granting farmworkers overtime pay after 8 hours of work in a single day or 40 hours in a workweek. The current standard is 10 hours a day and 60 hours in a week before overtime kicks in for farmworkers.

Assembly Bill 1066 starts phasing in the new standard in 2019, lowering the overtime threshold a half-hour each year until it reaches 8 hours in 2022. Farmworkers are currently the only employees in the state not governed by the 8-hours/40-hours standard.

The bill was championed by the United Farm Workers of America, but criticized and opposed by the farming industry, which predicted it would cut workers’ hours and overall employment while also raising market prices. An earlier version of the bill died in the legislature in June, but it was revived and passed in time for the governor to sign it this year. Gov. Arnold Schwarzenegger vetoed a similar measure in 2010.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Richmond EEOC Office Signs Agreement with Mexican Consulate

The Richmond Local Office of the Equal Employment Opportunity Commission (EEOC) has entered into a memorandum of understanding (MOU) with the Washington, D.C. Consulate of Mexico.

The agreement establishes an ongoing collaborative relationship between these two entities to provide Mexican nationals with information, guidance and access to resources on the prevention of discrimination in the workplace. Mexican Consul General Juan Carlos Mendoza Sánchez and Reuben Daniels Jr., director of the EEOC’s Charlotte District Office, signed the agreement.

The Mexican Consulate in Washington, D.C. provides services to preserve the rights of Mexican nationals. The EEOC’s Richmond Local Office enforces federal employment discrimination laws, and is part of the EEOC Charlotte District.

“The EEOC is committed to our mission to stop and remedy unlawful employment discrimination in every facet of employment, and this agreement allows us the unique opportunity to collaborate with the consulate to ensure that we provide outreach and education to individuals who may have difficulty accessing our services,” said Richmond Local Office Director Daron L. Calhoun. “We look forward to working with the Mexican consulate in this collaborative relationship and partnership to promote justice and equality in the workplace.”

Under the terms of the MOU, the Richmond Local Office will work with the Mexican consulate to collaborate on education and outreach efforts to ensure that Mexican nationals are aware of applicable workplace laws and regulations, and on a system for referring complaints to the EEOC.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Revised Form I-9 to Debut within 90 Days

The Office of Management and Budget (OMB) in late August approved revisions to the federal Employment Verification Form I-9 and gave the United States Citizenship and Immigration Services (USCIS) 90 days to release the new form.

The note sent to USCIS by OMB reads: USCIS will, within 90 days, update the I-9 system in order to reflect the new instruments. USCIS will indicate at the bottom of the new form a revision date no later than 90 days from this approval. USCIS may accept the prior version of these instruments for 150 days while technical updates are made.

The new form will feature drop-down menus and other more user-friendly innovations. The expired form is still good until Jan. 21, 2017.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Circuit Court Slams the Brakes on Uber Drivers’ Lawsuit

The 9th U.S. Circuit Court of Appeals ruled Wednesday that Uber drivers who signed arbitration agreements with the ride-sharing company must use the arbitration process and not the courts to settle their grievances. Essentially, this means that only about 8,000 of some 240,000 drivers involved in the California-Massachusetts class action can proceed with the lawsuit. The others all signed arbitration agreements.

In making its ruling, the appellate court said U.S. District Judge Edward Chen lacked the authority to throw out the arbitration agreements as “unenforceable and unconscionable” in an earlier court case.

As a result of Chen’s earlier ruling, Uber subsequently reached a $100-million settlement with the drivers, a settlement that Uber might now void (Chen had already ruled it insufficient upon review).

The ruling also casts a pall over lawsuits by drivers in other jurisdictions.

Going to arbitration means the drivers must individually meet with an arbitrator, whose subsequent ruling is binding. Arbitration is generally viewed as employer-friendly.

An attorney for Uber called arbitration “fair and speedy” and less costly than courtroom litigation.

The drivers’ attorney, Shannon Liss-Riordan, responded: “The battle is far from over.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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U.S., Canada Agree on Common Labeling of Chemicals

The Occupational Safety and Health Administration (OSHA) and Health Canada, through the Regulatory Cooperation Council, have jointly developed a 2016-2017 Workplace Chemicals Work Plan. The purpose of the work plan is to ensure that current and future requirements for classifying and communicating the hazards of workplace chemicals will be acceptable in the United States and Canada without reducing worker safety.

The work plan involves activities that support:

  • Developing materials to assist stakeholders with implementing the Globally Harmonized System of Classification and Labelling (GHS) and understanding the interpretation of technical issues and requirements in Canada and the U.S.;
  • Coordinating opinions on issues that arise from international discussions on the GHS; and
  • Maintaining alignment between the U.S. and Canadian requirements for implementing the GHS when revisions are made.

“This plan is part of ongoing efforts between OSHA and Health Canada to reduce regulatory barriers between U.S. and Canadian systems responsible for chemical safety and provide concise information to protect workers exposed to hazardous chemicals,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels.

OSHA signed a Memorandum of Understanding (MOU) with Canada’s Department of Health in 2013. The goal of the MOU is to devise a system, accepted by both countries, that allows the use of one label and one safety data sheet.

OSHA aligned its Hazard Communication Standard with the GHS in March 2012 to provide a common, understandable approach to classifying chemicals and communicating hazard information on labels and safety data sheets. OSHA’s Hazard Communication Web page includes links to the standard, frequently asked questions and guidance materials.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL, Nebraska Sign Agreement on Fighting Misclassification

The Department of Labor (DOL) and its Wage and Hour Division (WHD) have signed a three-year Memorandum of Understanding (MOU) with the Nebraska Department of Labor intended to protect employees’ rights by preventing their misclassification as independent contractors or other non-employee statuses.

The two agencies will provide clear, accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law, according to a statement.

The WHD is working with the Internal Revenue Service (IRS) and 33 other states to combat employee misclassification and to ensure that workers get the wages, benefits and protections to which they are entitled.

Labeling employees as something they are not – such as independent contractors – can deny them basic rights such as minimum wage, overtime and other benefits. Misclassification also improperly lowers tax revenues to federal and state governments, and creates losses for state unemployment insurance and workers’ compensation funds, the agencies said.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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