Although passed more than two years ago, the final deadline for implementing the revised OSHA Hazard Communication Standard (HCS) and new Globally Harmonized System (GHS) is coming up on June 1, 2016.  By that date, employers will need to ensure that their hazard communication program has been fully updated along with providing training to all employees on the new standards. 

In addition, employers must update chemical labeling throughout the workplace with the new pictograms and replace the old Material Safety Data Sheets with the new Safety Data Sheet (SDS), which contains the revised format with strict ordering of 16 specific sections.  It is important to ensure that employees are trained on the SDS format and hazard warning information with the new labeling and pictograms.  Employers will need to review their current chemical inventory and contact suppliers to obtain the newly formatted SDSs.

Unfortunately, some chemical manufacturers and distributors have missed prior deadlines to reclassify hazardous chemicals and have failed to draft SDSs that comply with the new format.  This has left employers in a tough position since ultimately it is their responsibility to obtain the updated SDSs and make the information available to employees.  OSHA expects employers to play an active role in getting suppliers to comply with the new standards so it will be important to document the good faith efforts made to obtain the new SDSs prior to the deadline.

Employers have now had more than two years to update their HAZCOM programs, incorporate the new SDSs and provide updated training to its employees.  So ready or not, OSHA will not be shy to cite companies that have failed to comply with the new standards by this final deadline coming up in a few weeks.

Employers are continually reading headlines about the National Labor Relations Board (NLRB) rulings declaring common employer work rules to be overbroad and unlawful, because some employees might misinterpret such rules as applying to protected concerted or union activities.  In a recent ruling, the NLRB again finds work rules prohibiting employees from engaging in "improper conduct" or "inappropriate behavior" as being overbroad and unlawful.  William Beaumont Hospital, 363 NLRB No. 162, 206 LRRM 1053 (April 13, 2016).  This ruling is somewhat different and interesting, however, because the dissenting NLRB member called for a new standard of evaluating the legality of employer work rules, and an issue arose in the case as to the legality of discharges of employees related to overbroad work rules. 

The NLRB majority finds that even if employees have been fired for violating unlawfully broad work rules, in many circumstances the discharges themselves might nevertheless be deemed lawful.  That is, discipline imposed pursuant to an unlawfully overbroad work rule violates the Act in those situations in which an employee violates the rule by:  (1) engaging in protected conduct; or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.  Nevertheless, an employer will avoid liability if it can establish that the employee's conduct actually interfered with the employee's own work or that of other employees or otherwise actually interfered with the employer's operations, and that the interference, rather than the violation of the rule, was the reason for the discipline.  Thus, it is not unlawful for an employer to discipline an employee pursuant to an overbroad rule in situations where the employee's conduct is not similar to conduct protected by the Act. 

Dissenting NLRB member Miscimarra, the only Republican remaining on the currently 4-member NLRB, writes an extensive dissent to the finding of unlawfully overbroad rules, such as the rules that:  (a) prohibit conduct that "impedes harmonious interactions and relationships;" and (b) prohibit "negative or disparaging comments about the. . . professional capability of an employee or a physician to employees, physicians, patients, or visitors."  The dissenting member would find the rules noted are supported by substantial justification unrelated to the Labor Act, and have a minimal impact, if any, on the exercise of rights afforded by the Act.  He would rewrite the NLRB's current doctrine which renders unlawful all employment policies, work rules and handbook provisions whenever an employee "would reasonably construe the language to prohibit Section 7 activity."  He notes that in many cases the NLRB current doctrine invalidates facially neutral work rules solely because they are ambiguous in some respect.  This requirement of linguistic precision stands in sharp contrast to the treatment of "just cause" provisions, benefit plans, and other types of employment documents, and fails to recognize that many ambiguities are inherent in the Labor Act itself.  Instead, he believes that the NLRB has a duty to strike a proper balance between asserted business justifications and the invasion of employee rights.  Thus, he believes that when evaluating a facially neutral policy, rule or handbook provision, the NLRB should evaluate the potential adverse impact of the rule on NLRA-protected activity, and the legitimate justifications an employer may have for maintaining the rule.  Under this test, a facially neutral rule should be declared unlawful only if the justifications are outweighed by the adverse impact on Section 7 activity.

Editor's Note - The majority ruling is some comfort to employers to know that in many circumstances an employee may be lawfully disciplined or terminated pursuant to an unlawfully overbroad rule.  However, many commentators believe the NLRB continues to err in finding common employer policies or rules to be unlawfully overbroad simply because an employee might inappropriately interpret the rules as applicable to protected union or concerted activity.  

On May 11, 2016, OSHA issued a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulations to be effective January 1, 2017, though portions become effective as soon as August 2016.  The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers already are required to keep under existing OSHA regulations, and, in some cases, to disclose such information to their employees and the general public.  The frequency and content of these compulsory submissions depend on the size and industry of the employer.  Data submitted will be published on a publicly accessible Web site.

The final rule also requires employers to remind employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

OSHA requires employers with more than 10 employees in most industries to maintain records of occupational injuries and illnesses using an OSHA Form 300, the "Log of Work-Related Injuries and Illnesses."  Employers also must prepare a supplementary OSHA Form 301 "Injury and Illness Incident Report" with additional details about each case recorded on the OSHA Form 300.  At the end of each year, employers must prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the "Summary of Work Related Injuries and Illnesses," and post the form in a visible location in the workplace.  The new rule amends OSHA's RECORD KEEPING regulations to require electronic submission of this information.  Establishments with 250 or more employees will have to electronically submit information from Forms 300, 300A, and 301 to OSHA on an annual basis.  Some establishments in certain industries or upon requests by OSHA will be required to file the OSHA 300A.

Once the rule is in effect, any member of the public will be able to search a database by employer or establishment and view all of a company's records of workplace injuries and illness.  OSHA stresses that the electronic submission requirements do not add to or change any employer's current obligation to create and retain injury and illness records, but the public disclosure aspect is definitely new, and Web access makes it infinitely easier for anyone to search.

On May 18, 2016, the U.S. Department of Labor (DOL) published a Final Rule which almost doubles the current salary threshold for the executive, administrative, and professional (EAP) exemptions to overtime.  The rule, which takes effect December 1, 2016, is designed to plug a perceived gap that some feel causes many lower-level managers to be unfairly deprived of overtime when they work more than 40 hours.  The new rule will raise the salary threshold indicating eligibility from $455/week to $913/week ($47,476 per year), in 2016.  This salary threshold will be updated automatically every three years, based on wage growth over time, to keep pace with inflation.  But will the rule actually result in a raise for 4.2 million people, as DOL predicts?  Or will it result in perceived demotions, restrictions on hours, and cuts in take-home pay?  We shall see.

When the rule takes effect, employers will have the following options for bringing employees who are currently salaried and exempt, but earning less than $913/week, into compliance:

  • Raise the exempt, salaried worker's pay to at least $913/week, and prepare to increase that pay as DOL increases the threshold; or
  • Make the employee hourly, monitor hours worked, and either
  • Restrict the employee to working no more than 40 hours/week; or
  • pay time-and-a-half for all hours worked over 40.

There is another option, approved by Federal law but not allowed in a few States, of treating the employee as salaried nonexempt and paying them a guaranteed salary each week for all hours worked, plus a supplement of ½ times their regular rate for each hour worked over 40.  Public-sector employers also have the option to pay overtime in the form of compensatory time off, within certain limits, in lieu of cash wages.  Employers have the option of making the changes budget neutral by lowering the hourly rate or salary and then paying overtime so that the weekly pay remains the same.

While DOL obviously believes it is helping employees get a raise, the new rule may have unintended consequences.  It is much more likely that employers will shift salaried workers currently paid less than the new minimum to hourly status, with hourly rates that approximate their former salaries, and control costs by restricting overtime.  Many employees may perceive this as a demotion.  There is more to salaried status than simply pay.  For example, many employers make only salaried employees eligible for certain benefits like health insurance and retirement.

DOL's changes also will move up that first rung on the ladder of success for many workers - a lot.  The old exemption threshold ($455/week) works out to about $9/hour over 50 hours, not an unusual rate for a starting-level assistant manager at a discount retail chain, for example.  It is certainly an improvement over a starting minimum hourly wage of $7.25.   Learning to be a manager can take time, as the employee learns procedures and develops supervisory skills.  When the starting pay for a salaried managerial position moves up to $913/week, that means an effective rate of $18.26 per hour over 50 hours. The employer is making more than twice the investment in the employee.  Many small (and even large) employers may be reluctant to give inexperienced first-timers an opportunity to move up from hourly work at an annual salary in excess of $47,000.  If they remain at their current rate of $9/hour, and are allowed to work no more than 40 hours each week, they will gross only $360/week.  That is a hefty pay cut.  If they continue to work 50 hours, with overtime, they will take home $495, just $40 more than they earned as a salaried manager before the change.  That is a pretty measly raise.  Of course, it also assumes the employer will not reduce the hourly rate so that the employee with overtime continues to receive the same pay.

Every employer with salaried, exempt employees earning below the new $913 weekly threshold needs to consider their options for compliance with the new rules before the December 1, 2016 effective date.

Wimberly, Lawson, Steckel, Schneider & Stine

 3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 / 404.365.0900

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