Employers in State Plans Must Submit Injury, Illness Data, OSHA Confirms

Following a review of the requirements put in place in 2016 regarding the “Improve Tracking of Workplace Injuries and Illnesses” regulation, the  Occupational Safety and Health Administration (OSHA) has taken action to correct an error that was made with regard to implementing the final rule.

court-rules-states-must-submit-injury-illness-dataOSHA determined that Section 18(c)(7) of the Occupational Safety and Health Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the Injury Tracking Application (ITA) online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.

OSHA immediately notified State Plans and informed them that for Calendar Year 2017 all employers covered by State Plans will be expected to comply. An employer covered by a State Plan that has not completed adoption of a state rule must provide Form 300A data for Calendar Year 2017.  Employers are required to submit their data by July 1, 2018. There will be no retroactive requirement for employers covered by State Plans that have not adopted a state rule to submit data for Calendar Year 2016.

A notice has been posted on the ITA website and related OSHA webpages informing stakeholders of the corrective action.

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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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I-9 Fines Increased

The Department of Homeland Security (DHS) recently announced that it would be increasing the fines for Form I-9 errors and other common violations of federal immigration law.

The news of the penalty increases comes as the head of Immigration and Customs Enforcement (ICE) has pledged to quadruple worksite inspections, which includes auditing Forms I-9. This form is used to verify an employee’s identity and to also establish if a worker is eligible for employment in the United States. Even small errors can quickly add up, and penalties have increased more than 1,100 percent since 2007.

Effective April 2, 2018:

• Minimum fine for Form I-9 errors increased from $220 to $224
• Maximum fine for Form I-9 errors increased from $2,191 to $2,236
• Maximum civil penalties for violation of Immigration and Naturalization Act (INA) sections 274C(a)(1)-(a)(4), penalty for first offense increased from $3,621 to $3,695
• Maximum penalty for third or subsequent offense (per unauthorized alien) increased from $21,916 to $22,363


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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Paid Overtime for Sleeping on the Job?

It’s an issue that California has somewhat definitively solved, but one with which the nation’s courts have struggled: If your work requires you to sleep on the job, are you thereby eligible for minimum wage, if not overtime, during your non-waking hours?

dol-sues-over-pay-for-sleepA case in Connecticut involving caretakers who sleep at the homes of their clients may help clarify matters. A federal lawsuit filed by the Department of Labor (DOL) alleges that Care At Home LLC failed to pay overtime to employees who sometimes worked more than 100 hours a week, including sleep time in some cases.

The DOL also alleges that at least 10 employees worked between 48 and 112 houses, but were paid straight time for all the hours worked. Of the firm’s 90 employees, 51 signed the lawsuit when it was filed April 24.

The 1938 Fair Labor Standards Act (FLSA) mandates that workers be paid time-and-a-half overtime for each hour worked past 40 in a workweek. A Fact Sheet by the DOL clearly states that domestic service workers are covered by the FLSA: (more…)


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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Key Agency Nominations Languish in Congress

As just one reminder of how agency nominations are slogging through Congress, this past week the Senate Health, Education, Labor and Pensions (HELP) Committee indefinitely postponed its vote on Sharon Fast Gustafson to be general counsel of the Equal Employment Opportunity Commission (EEOC).

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Nominated in June 2017 to be EEOC chair, Janet Dhillon has still not been voted on

The postponement could spell trouble for her nomination due to a lack of votes to send her name to the Senate floor. Republicans hold a one-vote majority on the committee.

Even ambassadorial nominations are facing long-term confirmation processes. This past week, after seven months, Richard Grenell was finally approved as ambassador to Germany.

Some other notable languishees include:

  • Janet Dhillon: originally nominated on June 29, 2017, to be EEOC chair
  • Daniel Gade: originally nominated on Aug. 2, 2017, to be EEOC commissioner
  • Cheryl Stanton: originally nominated on Sept. 5, 2017, to be the Wage and Hour Division (WHD) administrator
  • Scott Mugno: originally nominated on Nov. 1, 2017, to be assistant secretary for the Occupational Safety and Health Administration (OSHA)

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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9th Circuit Court Declares Salary History Discriminatory Under the EPA

The U.S. 9th Circuit Court of Appeals, arguably on the other end of the spectrum from the conservative-leaning 5th Circuit Court, has ruled that setting a new hire’s wages based solely on that person’s salary history can perpetuate discriminatory inequality under the federal Equal Pay Act (EPA).

9th-circuit-rules-salary-history-discriminatoryThe court, in Rizo v. Yovino, reasoned that employers should not be permitted “to capitalize on the persistence of the wage gap and perpetuate the gap ad infinitum.

The plaintiff, Aileen Rizo, challenged the hiring practice of Fresno County, Calif., whose standard was to base new hires’ salaries on their most recent salary plus 5 percent, which it did when it hired her.

In her lawsuit, Rizo argued that the county’s hiring practice was discriminatory and in violation of the EPA.

The county countered that the text of the EPA permits businesses to establish salaries on any “factor other than sex,” and thus salary history is a valid criterion.

The district court hearing the case denied summary judgment to the county, which appealed. A three-judge panel of the circuit court sided with the county, leading to the April 2018 en banc decision of the full court.

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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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New Jersey Enacts Nation’s Most Stringent Equal Pay Act

With a new sheriff in town, i.e., Gov. Phil Murphy, New Jersey was able this week to enact the nation’s strictest and farthest-reaching Equal Pay Act after years of vetoes of similar legislation by former Gov. Chris Christie. The law takes effect July 1.

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New Jersey Statehouse

At the signing of the Diane B. Allen Equal Pay Act, Gov. Murphy said:

“Today, New Jersey takes the first meaningful step towards gender equity and fighting the gender pay gap. This concept is the cornerstone of our efforts to build a stronger and fairer economy of New Jersey.”

Some of the features that render the state’s Equal Pay Act the nation’s most stringent include: a statute of limitations that tolls every time an unequal paycheck is issued; the inclusion of not just gender as a protected class but also race, national origin, age, sexual orientation, gender identity or expression, and disability; a broader definition of “substantially similar work” that encompasses  a composite of skill, effort and responsibility; and a trebling of damages for back wages due that can span the length of one’s employment.

In short, neither the federal Equal Pay Act nor any of the other states’ with such laws go as far in legal protection and monetary remedy as does New Jersey’s.

The signing of the bill on Tuesday, April 24, came on the heels of Murphy’s 100th day in office, which he commemorated on Wednesday at Rutger’s University.


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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EBSA Field Assistance Bulletin Slams Brakes on Socially Conscious Investing

The Employee Benefits Security Administration (EBSA) has issued a field bulletin that — once again — reverses a position of the Obama administration, this time stating that fiduciaries of employee benefit plans may not sacrifice returns or assume greater risks to promote collateral environmental, social or corporate governance (ESG) policy goals when making investment decisions.

ebsa-clarifies-esg-investingField Assistance Bulletin (FAB) No. 2018-01, issued on April 23, clarifies fiduciaries’ responsibilities under the Employee Retirement Income Security Act (ERISA) and was sent to EBSA national and regional offices.

In 2015, the Obama EBSA issued a bulletin that “corrected a misperception that investments in ETIs are incompatible with ERISA’s fiduciary obligations,” thus greenlighting ESG investing.

This week’s FAB reverses that to the standard that existed pre-Obama.

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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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EEO-1 Survey Deadline Extended Until June 1

With little fanfare and just a couple of red-ink sentences on its electronic reporting portal, the Equal Employment Opportunity Commission (EEOC) has extended the deadline for submitting the annual EEO-1 Report until Friday, June 1.

EEO-1-report-deadline-extended-to-june-1

One of two red-ink notifications on the home page of the EEO-1 portal.

The original deadline was March 31, but it was largely ignored.

Some confusion may exist as to what the report entails. Originally, the report was to include data on W-2 wages and hours worked, but the Trump administration Office of Management and Budget (OMB) initiated a review of the entire EEO-1 regulation and excluded those categories pending review.

As the electronic reporting site’s FAQs indicate: “Therefore, for the 2017 EEO-1 reporting cycle, the EEO-1 will not collect data about pay and hours worked from employers. But, for the 2017 EEO-1 reporting cycle, the EEO-1 will collect data on the race, ethnicity, and sex of workers, by job category, from private employers with 100 employees or more and federal contractors with 50 employees or more and $50,000 in contract(s).”

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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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HHS Releases Funding to Fight Opioid Crisis

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HHS Secretary Alex Azar

The Department of Health and Human Services (HHS) just released the second year of funding to 50 states, four U.S. territories, and the free associated states of Palau and Micronesia, totaling $485 million to continue the nation’s efforts to combat the opioid crisis.

“The Trump administration is partnering with states and territories to accelerate the deployment of this historic level of resources provided by the Congress to fight the epidemic,” explained HHS Secretary Alex Azar. “These funds will help support evidence-based efforts at the state level to prevent misuse of opioids in the first place, expand access to effective treatment options for people in need, and support recovery for those who have prevailed.”

The Opioid State Targeted Response (STR) grants, which were created by the 21st Century Cures Act, are administered by the Substance Abuse and Mental Health Services Administration (SAMHSA) within HHS.

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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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OMB to Withhold Funding from the NLRB

While General Counsel Peter Robb seeks to reorganize and rein in the agency’s regional directors, the National Labor Relations Board (NLRB) has been told not to spend money past April by the Office of Management and Budget (OMB).

peter-robb-new-nlrb-general-counsel

Peter Robb, new NLRB General Counsel

“The agency heads are claiming that OMB told them” the labor board “can’t spend past April” because the White House and some Republican lawmakers are considering trying to rescind part of the board’s funding, one source told Bloomberg Law on the condition of anonymity.

The White House has authority to withhold any agency’s funding for up to 45 days, but after that, the funds must be dispersed unless the Senate passes a rescission bill, which requires only a majority vote.

Lawmakers basically ignored all the agency cuts in the proposed budget issued by the Trump administration, and when the FY 2018 budget passed on March 23, almost no federal agency had to take a fiscal haircut. Now the OMB and the White House are working with Senate Republicans on a rescission bill to claw back part of that massive $1.3 trillion budget.

As for Robb, the counsel is considering stripping the board’s regional directors of some of their authority and revamping board investigations to speed the regulatory process.

Over at the Department of Labor (DOL), Secretary Alexander Acosta testified before Congress that he is “in discussion with OMB around a potential rescission.” The DOL received a $192-million increase for 2018 with a total outlay of $12.2 billion.

NLRB funding for 2018 currently stands at $274 million.

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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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