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OSHA ALERT - Revised Final Rule on Electronic Record keeping Issued

On January 24, 2019, OSHA issued a notice in the Federal Register (84 FR 380) amending the recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to maintain those records on-site, and OSHA will continue to obtain them as needed through inspections and enforcement actions. Establishments will continue to submit information from their Form 300A's.  Employers' responsibilities to report fatalities, hospitalizations, amputations and loss of an eye to OSHA remain the same.

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Employment Items to Consider for Early 2019

Employment Items to Consider for Early 2019

Because of the enormous increase in legal claims and disputes over the past few years, Wimberly & Lawson suggests that employers should consider the following projects in early 2019 as they are quite important and timely.  Wimberly & Lawson would be pleased to provide fixed fee estimates for each project or otherwise advise employers in these important pro-active steps to avoid the adverse publicity and headaches of expensive litigation.  If your company has not reviewed and updated these policies since the substantial changes in 2018 from the U.S. Supreme Court, it is extremely likely that your policies do not reflect current law and "best practices" as to compliance.

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New Georgia Department of Labor Initiative Supports Immigration Compliance

New Georgia Department of Labor Initiative Supports Immigration Compliance

Effective January 1, 2019, the Georgia Department of Labor (GDOL) will reject Quarterly Tax and Wage Reports containing certain invalid Social Security numbers (SSN) and may assess delinquency fees against employers failing to submit complete or correct reports by the due date.  However, an employer submitting a corrected report after the due date when it timely submitted the original probably will not receive an assessment if the corrected report is submitted in a timely manner as directed by GDOL.  Regardless, GDOL will keep the unemployment insurance taxes paid to it with the rejected reports. 

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Eleventh Circuit Affirms Warrant Quash: OSHA 300 Logs Alone Not "Probable Cause"

In a decision, USA v. Mar-Jac Poultry, Inc., published October 9, 2018, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed a District Court decision quashing an inspection warrant that the Occupational Safety and Health Administration (OSHA) had sought to expand a limited incident inspection to a “wall-to-wall” examination covering every facet of the employer’s facility.  The decision is significant for several reasons: First, because OSHA warrants are rarely challenged; second, because the Court upheld Constitutional limits on government power; and third, because OSHA’s argument that it could rely on the employer’s mandatory records of workplace illness and injury (OSHA 300) to supply probable cause to investigate was soundly rejected.  This case is a big “win” for employers.

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Poultry Processing Plants and Anti-Terrorism Regulations

The Department of Homeland Security (DHS) promulgated regulations in 2007 for the purpose of preventing access by terrorists to chemical facilities that manufacture, store or use chemicals of interest (COI).  The regulations are titled “Chemical Facility Anti-Terrorism Standards” and can be found at 6 C.F.R. Part 27.

Poultry processing companies are subject to these regulations when they store and/or use certain chemicals in sufficient quantities.  The COIs that will trigger coverage under the regulations include, among others:

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ICE Conducts "Old-Fashioned" Raid of Tennessee Meat Packing Plant

ICE Conducts "Old-Fashioned" Raid of Tennessee Meat Packing Plant

Immigration & Customs Enforcement (ICE) officials on April 5, 2018 conducted a "raid" on a meat packing plant in Bean Station, Tennessee, near Knoxville.  One distinction between a "raid" and an "inspection" is that a raid is accompanied by a warrant that requires immediate access to the property.  An inspection or audit in contrast begins when a business receives a Notice of Inspection, which states that the employer must produce its Form I-9s to an ICE auditor.  By law, unless a search warrant allows immediate seizure of documents, an employer must be given three (3) business days to produce the documents requested by the subpoena.

In contrast to audits or inspections, employers are not notified of raids and raids usually occur in very serious situations.  At the Tennessee location, where the authorities executed a search warrant, the facility allegedly failed to report $8.4 million in wages and to pay at least $2.5 million in payroll taxes for undocumented workers.  The workers were allegedly paid in cash and subject to harsh conditions.  During the course of the raid, ICE arrested some 97 immigrants suspected of being in the country illegally.  In ICE raids, it is not uncommon for the premises to be surrounded by ICE officials to prevent anyone from leaving. 

The action was described as the largest single workforce raid since the Bush Administration and the implementation of the raid reminded one of those conducted during that administration.  State and local authorities participated in the raid and streets were blocked.  In a federal affidavit, officials said the family-run plant is under criminal investigation for allegedly evading taxes, filing false tax returns and hiring immigrants in the country illegally.

Last October, the acting ICE director indicated that there would be a four- to five-fold increase of ICE enforcement efforts.  During the Trump Administration so far, there has been more than a one-third increase in immigration arrests and deportations. 

Employers should carefully review any warrant to understand its scope, as the warrant should have a detailed description of when and where agents are going to search and what they may seize.  Obviously, employers should be polite to the officers and not obstruct them from doing their jobs.  Employers are not required, however, to answer ICE questions during a raid and advice of counsel should be sought as to whether employers should consent to ICE agents speaking to their employees on the premises.  Employers must learn their rights during a raid and develop protocols to follow if an audit or raid occurs.

 

Questions?  Need more information? 

Contact James W. Wimberly, Jr. (jww@wimlaw.com) or Jim Hughes (jlh@wimlaw.com) or call 404-365-0900.

DOL Launches Pilot Program Allowing Employers to Resolve Payroll Errors Without Fees or Penalties

On March 6, 2018, the Wage and Hour Division of the U.S. Department of Labor (WHD) announced a pilot program designed to expedite resolution of payroll errors.  Dubbed with the convenient acronym PAID, the Payroll Audit Independent Determination program will allow employers to correct inadvertent overtime and minimum wage violations without having to pay fees, fines, or liquidated damages. 

Under the PAID program, employees will receive 100 percent of the back wages owed.  Employers – and employees -- will be spared any litigation expenses, attorneys’ fees, or other costs that may be applicable to private actions. WHD will assess the amount of wages due and supervise payment to employees. No penalties or liquidated damages will be imposed on employers who participate in the PAID program, self-report errors to WHD, and agree to future compliance.  (The program is not open to employers currently being investigated or engaged in litigation.) 

WHD is implementing the pilot program nationwide for approximately six months, after which it will evaluate the results and decide whether to make it permanent.  Employers are encouraged to audit their compensation practices to identify and correct potential non-compliant practices. 

COMMENT:  PAID is an example of how DOL can be a compliance partner, not just an adversary to employers.  “Good faith” traditionally allowed employers to avoid liquidated damages where inadvertent errors were made.  The prospect of attorneys’ fees often makes FLSA cases an expensive “gotcha” for employers and an impediment to settlement:  PAID should help short-circuit the litigation lottery, getting employees made whole sooner without letting their attorneys get fat in the process.

More information concerning the pilot program is available at www.dol.gov/whd/paid

Questions?  Need more information?  Contact Larry Stine (jls@wimlaw.com) or call 404-365-0900.

OSHA ALERT: Happy New Year - OSHA Penalties Increase

Effective immediately, the U.S. Department of Labor raised Occupational Safety and Health Administration (OSHA) penalties by 2%.  In a notice published in the Federal Register on Tuesday, January 2, 2018 (Vol. 83, No. 1).  DOL said it was increasing 2018 penalties to comply with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), which requires certain divisions of DOL to keep monetary civil fines in step with the rate of inflation. The modifications must be made by Jan. 15 of each year.  

The maximum OSHA penalties now will be $12,934 for other-than-serious and serious violations, and $129,336 for repeat and willful violations. State OSHA programs are likely to follow suit and raise their fines as well. 

This is a very modest increase compared with other recent penalty hikes.  In August 2016, DOL raised OSHA fines by 78%, the first increase since 1990. That change was mandated by the 2016 budget bill, which required the agency to bring its penalty levels in line with the Consumer Price Index and be adjusted accordingly every year thereafter.

The prospect of higher fines, by itself, is unlikely to affect employer behavior, although it does emphasize the value of compliance.

Happy New Year from OSHA!

Questions?  Need more information?  Call Larry Stine at (404)365-0900.

Labor Department Withdraws Obama-Era Guidance that Sought to Expand Joint Employment

In a June 7, 2017 news release, U.S. Secretary of Labor (DOL) Alexander Acosta announced the withdrawal of informal guidance issued in 2015 and 2016 on joint employment and independent contractors.  No statutes or regulations are repealed or amended, and case law isn’t affected, but the change means that DOL is abandoning the previous Administration’s expansive position.

This is really a return to prior, longstanding practice.  Until 2015, DOL interpreted the joint employer doctrine to apply only where one business had “direct control” over another business’s workforce. In 2015, and again in 2016, DOL changed its position and announced that it would consider that one business may be a joint employer with another even if it exerted only “indirect control.” DOL’s plain, if veiled, intention was to reach the deep pockets of a franchisor (think burgers) in the event that an individual franchisee was determined to have committed violations of the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Workers Protection Act (MSWPA), or even laws prohibiting discrimination, such as Title VII and the ADA. 

Critics of “indirect control” argued that it was ambiguous and would disrupt franchise, parent-subsidiary, and independent contractor relationships.   Companies large and small, particularly franchisors, worried that they could be held financially accountable for conduct at workplaces over which they had no direct oversight or control.

DOL’s announcement of June 7, 2017 rescinded the previously issued “guidance,” but stressed that it would continue to vigorously enforce the FLSA, MSWPA, and all other worker protection laws within its jurisdiction.  And even though DOL has changed its position, the Obama-era interpretation still may be invoked by the National Labor Relations Board (“NLRB”), the independent agency that is the government’s main labor law enforcer. The NLRB has held companies jointly liable for their contractors if they have “indirect” control over the terms and conditions of employment or have “reserved authority to do so.” To date, the NLRB has not modified its interpretation, but the Board currently has vacancies for two of its five seats which President Trump has yet to fill. 

Questions?  Need more information?  Call Larry Stine at (404-365-0900)

OSHA ALERT: OSHA Regional Emphasis Program Targets Southeastern Poultry Processing Facilities

OSHA ALERT:

OSHA Regional Emphasis Program

Targets Southeastern Poultry Processing Facilities

On October 26 and 27, 2015, OSHA's Atlanta and Dallas offices announced new regional emphasis programs focused on chicken processing facilities.  This program will affect employers in Regions 4 and 6, which cover an area stretching from the Arizona state line in the west to the eastern seaboard, as far south as Key West, and as far north as Kentucky. 

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DOL Proposes to Increase Salary Threshold for Overtime Exemption: Will It Raise Wages or Cut Hours?

DOL PROPOSES TO INCREASE SALARY THRESHOLD FOR OVERTIME EXEMPTION:  WILL IT RAISE WAGES OR CUT HOURS?

 

On June 30, 2015, the U.S. Department of Labor announced a notice of proposed rulemaking (NPRM) which proposes to more than double the current salary threshold for the executive, administrative, and professional (EAP) exemptions to overtime.  The proposal aims to plug a gap that some claim has caused many lower-level managers to be unfairly deprived of overtime when they work more than 40 hours.  Skeptics say the new rule likely will decrease the number of hours many employees are allowed to work, replacing full-time workers with part-timers, raise costs, and make it more difficult for hourly workers to climb the ladder to management positions.  The public has 60 days to submit comments on this proposal.  (Read the full text at http://www.dol.gov/whd/overtime/NPRM2015/OT-NPRM.pdf.)

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