BOLI has added a number of FAQs clarifying the application of new laws (and in the case of manufacturing overtime, BOLI’s new interpretation of old law). The new FAQs are here:
Itemized Pay Statements:
Most employers are aware that, as of January 1, 2017, a new OSHA rule requires employers to electronically submit injury and illness data. The new rule also incorporated existing prohibitions on retaliation and clarified 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.
In October 2016, OSHA issued a Memorandum interpreting the new OSHA rule and specifically addressed how the rule relates to post-accident drug testing. Most significantly, OSHA has taken the position that, while the new rule does not prohibit employers from drug testing employees who report work-related injuries or illnesses, employers must have an objectively reasonable basis for testing. The rule does not apply to drug testing for reasons other than injury-reporting.
When determining whether an employer has an “objectively reasonable basis for testing,” OSHA will consider a number of factors, including: (i) whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred); (ii) whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and; (iii) whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
According to OSHA, the point of the Memorandum is to make clear that drug testing may not be used by an employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.
Employers should review their drug testing policies and consider revising policies that include automatic mandatory post-accident drug testing without consideration of other factors. Note, however, the OSHA rule does not preempt state or federal regulations that require post-accident testing, such as DOT rules.
The Memorandum is here:
United States Citizenship and Immigration Services published a revised I-9 Form on November 14, 2016, and employers are required to use the new form beginning on January 22, 2017. The new form is intended to be easier to complete electronically. More information is available at https://www.uscis.gov/news/news-releases/uscis-revises-form-i-9-used-all-new-hires-us.
Oregon’s recent snow “event” is a good reason for employers to familiarize themselves with wage and hour issues implicated by weather-related work closures.
Generally, hourly employees are not entitled to pay for hours they do not work. If the office closes for weather-related reasons, hourly employees do not get paid. Employers can choose to pay employees for days when the office is closed because of the weather, but are not legally obligated to do so. Employers can also allow employees to make-up missed time by working extra hours or on weekends. Where this option is provided, employers need to make sure employees keep track of “extra” time worked, take breaks as required, and do not end up working unauthorized overtime.
For exempt employees, pay will depend upon whether the employer closes the office. If the office is closed, the employer must pay exempt employees their full salary. If, however, the office is open, but an exempt employee elects to stay home because of the weather, the employer does not have to pay the exempt employee for the full-day absence because the employee is absent from work for personal reasons other than sickness or disability. The exempt employee could choose to use PTO or vacation to get paid for the full-day absence, but the employer is not required to pay the employee.
Employers also need to be mindful of whether employees are working from home on days when the office is closed because of bad weather. Hourly employees must keep track of time worked from home so they can be paid for that time, and exempt employees who choose to work from home rather than traveling to the office, should be paid their full salary.
The last storm is a great excuse for employers to review and update inclement weather policies to reflect how weather-related absences will be treated.
On January 10, 2017, the EEOC published proposed enforcement guidance on unlawful harassment. The guidance, designed for employers and employees, sets forth the EEOC’s views on federal harassment law, and provides explanatory examples and recommended practices for employers to follow. The EEOC is accepting public comment on the proposed guidelines until February 9, 2017. We will update the blog once the final version is released.
Back in October we blogged about the new Oregon law that requires an itemized time and pay statement to accompany employee paychecks. Since the law went into effect on January 1, 2017, the two required items that appear to be missing from most paystubs are: (i) the employer’s business registry number or business identification number; and (ii) language indicating whether the employee is paid by the hour, shift, day or week, or on a salary, piece or commission basis.
Employers are advised to check their January paystubs for compliance and itflisted items are missing, contact your payroll company or correct your paystubs internally.
The new law is here: https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2016orLaw0115.pdf
Washington State’s minimum wage will increase to $11 an hour beginning on January 1, 2017. http://www.lni.wa.gov/WorkplaceRights/Wages/Minimum/
A federal judge in the District of Kansas has permitted a class action lawsuit to proceed against an employer accused of failing to take adequate safeguards to prevent a data breach allegedly exposing the personal information of approximately 2,000 employees. The lead plaintiff alleges that the data breach resulted in the filing of a fake tax return in her name, which caused a refund check to be sent to the fraudster who submitted the return (such scams are on the rise). This case serves as a reminder to comply with best practices and legal requirements for safeguarding the personal information of employees — or anyone who provides personal information, such as customers or medical patients. We are happy to assist in this area. The case is captioned Hapka v. CareCentrix, Inc., D. Kan. No. 2:16-cv-02372-CM-KGG, and the order is available using this link.
The Fifth Circuit granted the DOL’s request to expedite its appeal of the lower court’s injunction which enjoined the new overtime rule from going into effect. The DOL’s opening brief is due on December 16, opposition is due January 17, and the DOL’s reply brief is due January 31st. Oral argument will take place sometime after January 31st – which means that the DOL, under the Trump Administration, could opt to drop the appeal (or take other action obviating the need for oral argument and subsequent proceedings).
SHRM also suggests that Congress might use the Congressional Review Act to revoke the DOL regulations. More on that (and a little civics lesson) can be found here:
The DOL has asked for its appeal of the district court’s injunction of the DOL overtime rule to be heard on an expedited basis. The proposed briefing schedule would require all briefing to be completed by February 7, 2017. The DOL requested that the Fifth Circuit rule on its request to expedite by December 8, 2016.
This does not change the uncertainty faced by employers. However, if the motion to expedite is granted, it will speed up the resolution of the dispute.