In a detailed Order published November 2, 2016, U.S. District Court Judge William C. O'Kelley of the Northern District of Georgia quashed (invalidated) a warrant OSHA wanted so that it could conduct a comprehensive inspection of a North Georgia poultry plant.  In a 15-page opinion, the Judge approved and adopted Magistrate Judge J. Clay Fuller’s August 5, 2016 Report and Recommendation, which found that the warrant should be quashed because OSHA failed to use Constitutional methods to select Mar-Jac Poultry for an intensified inspection after it reported an injury.  This decision is significant because it invalidates OSHA’s Regional Emphasis Program (REP) for Poultry Processing Facilities, announced in October 2015, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or "wall-to-wall," inspection covering the entire plant.

This case arose following a February 2016 accident involving a maintenance technician working on an electrical panel.  (The employee recovered, and has since returned to work.)  Because a recent rule change requires employers to alert OSHA in the event of any workplace injuries that require hospitalization, the employer promptly notified OSHA.  OSHA's REP called for all incident- or complaint-related inspections at poultry plants to be expanded to comprehensive investigations, subject only to "significant resource implications."  On the strength of the REP, the Area Director sent a team of inspectors, equipped to examine every aspect of the plant's operations, not just the area surrounding the electrical panel where the accident occurred.  When the employer pushed back, the Area Director secured a warrant authorizing the expanded inspection.  Wimberly & Lawson senior principal Larry Stine, on behalf of the employer, filed an emergency motion to quash the warrant, short-circuiting the proposed comprehensive inspection.

The Magistrate conducted a hearing, at which the Area Director testified that it was really up to his sole discretion to select targets for comprehensive inspections.  The REP ordered Area Directors to expand all unprogrammed inspections, but the reality is that OSHA only has the resources to conduct one or two each year.  This left the Area Director with no rules or guidance about which employers to select. 

The Magistrate concluded that this was precisely the sort of "unbridled discretion" that the Supreme Court, in Marshall v. Barlow's, had found to violate the prohibition against unreasonable search and seizure in the Fourth Amendment to the U.S. Constitution.  In his opinion, Judge O’Kelley examined, and rejected, each of OSHA’s objections.  For example, OSHA argued that the REP was a neutral plan, but the judge pointed out that it allowed the Area Director unbridled discretion to select targets, and therefore the purported neutrality was an illusion.  The judge rejected OSHA’s contention that the 300 logs of injury and illness were sufficient probable cause, noting (correctly) that those logs contain information about incidents, but nothing at all about causation.

The district court's ruling is important for all employers because it reminds OSHA that it is subject to the limits on search and seizure enshrined in the Fourth Amendment to the U.S. Constitution.

A federal appeals court has ruled that employers do not have to reassign disabled workers into open positions ahead of other more qualified persons.  EEOC v. St. Joseph’s Hosp., 2016 BL 406826 (C.A. 11, 12/7/16).  Some of the cases rely on the U.S. Supreme Court ruling in U.S. Airways, Inc. v. Barnett, 535 U.S. 361, a 2002 decision holding that the ADA does not require employers to ignore established seniority systems in awarding reassignments when a disabled worker seeks reassignment as an accommodation.  The EEOC has often taken the position that disabled workers are generally entitled to reassignment free from competition from non-disabled workers, but several rulings indicate that an employer need  not override a best-qualified applicant policy.   The court states that employers are only required to provide "alternative employment opportunities reasonably available under the employer’s existing policies."  It further states that the ADA "is not an affirmative action statute" and "only requires [the employer] to allow [the disabled employee] to compete for a job, but does not require [the employer] to turn away a superior applicant."  Finally, the court indicates that giving the plaintiff thirty days to apply for another job within the company subject to an extension for any position for which the plaintiff was being considered, is reasonable as a matter of law.

Editor’s Note - While the court suggests that an employer need not give disabled workers "preferential treatment" in job reassignments, such situations are controversial and advice of counsel is recommended.

On May 11, 2016, OSHA issued a final rule requiring employers to electronically submit injury and illness data on an annual basis.  The rule also included in the preamble guidance for employers on the impact of the new anti-retaliation provisions on drug and alcohol testing and safety incentive programs in the workplace.  Various trade associations filed suit challenging various provisions in the final rule, but a preliminary injunction was denied by a court ruling on November 28, 2016.

The "anti-retaliation" provisions of the new rule went into effect on December 1, 2016.  The rule requires employers to inform employees of their right to report work-related injuries and illnesses without retaliation, and the notice requirement may be satisfied by posting the OSHA Job Safety and Health - It’s The Law worker rights poster (from April 2015 or later). 

Some of the controversial portions of the anti-retaliation provisions that are to be tested in court include a provision dealing with the circumstances under which an employer may drug test an employee who reports an injury or illness.  In evaluating whether an employer has an objectively reasonable basis for such testing, the employer is supposed to determine whether it has a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.  Employers may continue to drug test in accordance with state workers’ compensation laws or other state or federal laws.

The electronic reporting rule does not prohibit safety incentive programs in and of themselves, but OSHA takes a position that the safety incentive programs should not be applied in a way that penalizes employees for reporting injuries or illnesses.  Additional guidance is available at: https://www.osha.gov/recordkeeping/modernization_guidance.html.

Right-to-work laws prohibit mandatory union membership as a condition of employment.  Currently, 26 states have right-to-work laws, and recent developments indicate that the doctrine of right-to-work is likely to spread.

First, three additional states (Kentucky, Missouri and New Hampshire) have elected both Republican governors and legislators and are likely to pass state right-to-work laws in the near future.  Second, an important court ruling (UAW v. Hardin County, Kentucky, 207 LRRM 3561 (C.A. 6, 2016)) has unanimously ruled that right-to-work laws can be passed by county governments, as counties are subdivisions of the "state" for purposes of allowing right-to-work laws.  County right-to-work laws, originally started in Kentucky, are likely to spread to other parts of the country, particularly if any unit of local government can pass such legislation.  This legislation, for example, has been passed in a town in Illinois near Chicago.  Finally, once the President-Elect fills the ninth seat on the U.S. Supreme Court, it is likely that the Court in the future will find governmental support for the collection of union dues to be unconstitutional.

The results of right-to-work laws are significant, the best example being Governor Scott Walker’s reform of public union laws in Wisconsin.  Since the 2011 reforms allowing right-to-work, the percentage of union membership in Wisconsin has dropped from about 14% to about 8%.  Declining union power in Wisconsin has resulted in improvements in public finances and Wisconsin is now viewed as a more attractive state for business resulting in economic gains as well as Republican gains in the state legislature.

1.     Immigration – Allow DACA (Deferred Action for Childhood Arrivals) slowly to expire by allowing current work permits to continue but not issuing new ones.  Durbin/Graham are proposing new bipartisan legislation for provisions protecting presence for three years to all immigrants in DACA program.  Direct the Labor Department to investigate visa (such as H-1B) abuse without dismantling programs.  Expand E-Verify.  Possible restitution of workplace raids of illegal immigrants. 

        2.  Obamacare – Maintain 26 years for dependents and barring exclusions for pre-existing conditions.  Move slowly to find eventual replacement.  Delete Cadillac Plan penalty and eventually other penalties as well.

        3.  Salary Overtime Rule – It is already subject to a federal injunction and may be dead.  The rule may be killed by failing to defend it or using Congressional Review Act, but pro forma congressional sessions in December may cause problems to the latter and AFL-CIO attempting to intervene in the court litigation to defend the salary overtime rule.

        4.  NLRB – Two of the five seats are vacant, and so the President may fill those two seats with Republicans and create a 3-2 Republican majority, subject to Senate confirmation, during 2017.  But NLRB general counsel position may not become vacant until November 4, 2017.

        5.  EEOC – Democrats may retain a majority on the five-member commission for the first half of 2017, but Republicans could bring about a new majority as early as July 2017.

        6.  New EEO-1 Form Requiring a Summary of Pay Data – Obligations start March 31, 2018.  Plenty of time for Republican majority to rescind or modify.

        7.  LGBT Issues – The Obama Administration took the position that a ban on sex discrimination extended to these factors, but whether they constitute sex discrimination under Title VII is unclear.  The same with "bathroom" issue.  The new Administration may await court rulings, but can nominate new EEOC general counsel right away.

        8.  GIG Economy Issues, Including Independent Contractor and Joint Employment – The new Administration can issue new "guidance" on these issues, negating expansive interpretations made by the Obama Administration.  NLRB issues will take more time, as current NLRB general counsel remains in office until November of 2017 and cases must arise dealing with these issues. 

        9.  OFCCP (Government Contractor) Rules – Possible review of 2014 changes regarding disabled individuals and military veterans, but new rule making procedures take one-two years.  Most likely candidate for rescission is the Obama Fair Pay and Safe Workplaces Executive Order requiring disclosures of past labor and employment law violations, which are already the subject of a preliminary injunction from a federal court.  Note that one portion of this rule requires businesses with contracts worth at least $500,000.00 to provide wage statements to certain workers, detailing their total and overtime hours, pay rates, gross wage and any itemized deductions, and also to inform independent contractors of their status as non-employees.  This portion of the rule goes into effect January 1, 2017, and is not part of the court injunction.  The new Administration could simply discontinue defending various rules in court.  OFCCP under the new Administration will likely go back to more desk audits rather than lengthy on-site investigatory audits.  Also, the government is likely to discontinue publishing violations and settlements with intent of "public shaming." 

        10.  New DOL Persuader Rule Requiring Public Reporting of Payments to Consultants and Attorneys for Labor Advice – It is already subject to a federal injunction and likely dead.

        11.  Presidential Executive Orders – Prior Executive Orders can be overturned by the new Administration quickly, with the Fair Pay and Safe Workplaces Executive Order being at the top of the list, followed by the Executive Order on project labor agreements, with the Executive Order establishing paid sick leave for employees working on federal contracts as another possible candidate. 

Note:  In case of regulations the new Administration doesn't like, options include issuing new regulations which take one-two years, passing legislation, or blocking new regulations via the Congressional Review Act.

Wimberly, Lawson, Steckel, Schneider & Stine

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