After significant delay, the Occupational Health and Safety Administration (OSHA) will begin enforcement of its new anti-retaliation regulations today. Although these provisions of the Improving Tracking of Workplace Illness and Injury rule actually went into effect in August of this year, OSHA agreed to push back the enforcement deadline twice, most recently at the request of a federal judge who was reviewing evidence from several organizations and employers asking for an injunction against the rule. Ultimately, the judge declined the request for an injunction, allowing OSHA to begin enforcement on schedule. In addition to the anti-retaliation provisions which became effective today, the portion of the rule requiring employers to electronically submit injury and illness data will go into effect on January 1, 2017, although 2016 reports are not required to be filed until July 1.
Our readers may remember that earlier this year we updated the New York Breastfeeding Mothers’ Bill of Rights Poster as a result of a new act that amended the Public Health Law. Under the new act (A 7202), effective January 1, 2016, additional rights were granted to breastfeeding mothers in the workplace. Mothers were given the right to take reasonable unpaid breaks at work to pump breast milk for up to three years following childbirth. Furthermore, employers were made responsible for making reasonable efforts to provide a room or other locations where mothers can express breast milk in privacy. The new language from the law was reflected on the bill of rights poster.
Our readers may remember reading our previous blog posts about the US Department of Labor’s (DOL) Final Rule increasing the minimum salary that bona fide executive, administrative, and professional (EAP) employees must earn to be exempt from overtime. The regulation proposes to increase the pay threshold for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). It means that employers have to pay time-and-a-half to their EAP employees who work more than 40 hours in a given week and earn less than $47,476 a year, or give low-wage EAP employees a raise, up to the new salary threshold. The regulation was scheduled to take effect on Dec. 1, 2016.
Last month the Third U.S. Circuit Court of Appeals ruled that the Fair Labor Standards Act (FLSA), which entitles non-exempt employees to overtime pay for hours worked in excess of 40, does not allow employers to offset unpaid overtime with paid meal breaks.
The plaintiffs in the case of Smiley v. E.L. DuPont de Nemours & Co. were employees of a DuPont plant in Pennsylvania who were required to spend 30 to 60 minutes each shift performing unpaid work-related activities such as donning and doffing uniforms and protective gear, and communicating with the incoming shift workers. DuPont provided these workers with one 30-minute meal shift as well as two non-consecutive breaks of 30 minutes each, which were counted as part of the employees’ 12-hour shifts. Although it was not required by federal law, DuPont paid the employees for these meal and break periods.
Two years after the passage of paid sick leave in New York City, the Department of Consumer Affairs revises the rules implementing the City’s Earned Sick Time Act. The amendments are to help clarify the Act and add new employer obligations necessary to achieve the Act’s goals. As originally enacted, the paid sick leave law requires employers with five or more employees to provide eligible employees up to 40 hours of paid time off each year to care for themselves or a family member.
Under the new rules, calculating the number of employees an employer has within New York City is specified. For an employer that has operated for less than one year, the business size must be determined by counting the number of employees that perform work for compensation per week. However, if the number of employees fluctuates, the business size may be determined based on the average number of employees that performed work per week during the previous calendar year.
The United States Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. Employers may continue using Form I-9 with the revision date of 03/08/2013 through January 21, 2017. By January 22, 2017, employers must use the revised form.
These are some of the changes in the new version:
- Employees only need to provide other last names used in Section 1, rather than all names used
- The certification in Section 1 for certain foreign nationals takes less time to complete
- Additional spaces to enter multiple preparers and translators
- A dedicated area to enter additional information instead of using the margins of the form for notations
Also, when the revised Form I-9 is completed on a computer, users will see:
- Progress message
- Field error check with incomplete fields highlighted
- Drop-down state and identity and employment authorization document titles
- Hover text and on-screen help buttons for each field
- Instructions, Print and Start Over buttons
- QR Code generator
Employers should continue to follow the existing storage and retention rules for all of their previously completed Forms I-9. The USCIS is expected to publish a revised Handbook for Employers soon.
Despite legal challenges and controversy, the Occupational Health and Safety Administration (OSHA) will begin enforcing its new anti-retaliation and anti-deterrence regulations December 1 of 2016. The regulations became effective as of August 10, 2016, but OSHA has delayed enforcement twice in order to address members of the regulated community who found the provisions unclear and overwhelming.
To that end, OSHA recently issued guidance addressing some common questions regarding the new provisions. Although the guidance is not enforceable as law and individual OSHA inspectors will have considerable discretion to investigate employer actions that OSHA does not generally regard as against regulations, OSHA’s guidance does at least offer employers some clarity as to the agency’s aims and where they will focus their enforcement efforts. Primarily, OSHA’s emphasis is on eliminating procedures and policies which “might deter or discourage” employees from accurately reporting workplace injury or illness, and “[improving] employee and employer understanding of their rights and responsibilities” in regards to reporting.
Last week, voters in the state of Washington approved a substantial increase in the minimum wage rate beginning next year. Minimum wage workers currently make $9.47 per hour. With the passage of Initiative 1433, their wages will increase to $11.00 per hour starting on January 1, 2017. The Initiative also requires employers to provide employees with up to five paid sick leave days per year.
Ordinarily, Washington’s minimum wage rate is adjusted each year for inflation. Based on that formula, the Department of Labor & Industries announced earlier this year that the minimum wage would increase to $9.55 per hour in January, just 8 cents more per hour than the current rate. The voter-approved minimum wage rate under I-1433 means that workers will instead be making $1.53 per hour more than the current rate, and significantly more than anticipated for several years thereafter. The initiative schedules minimum wage rate increases over the next four years as follows:
Late last month, the Nevada Supreme Court offered a two-for-one ruling on provisions from the state’s 2006 Minimum Wage Amendment (MWA) which have been highly debated for a decade.
For Nevada employees who are offered qualified health insurance, the minimum wage rate (adjusted for 2016 inflation) is $7.25 per hour; for all other employees the rate is $8.25 per hour. Since the adoption of the MWA, there has been controversy as to whether language like “offer” and “provide” within the constitutional amendment indicates that employers could consider an employee eligible for the lower wage rate if a qualified health plan was merely offered to them, or if the employee is required to make use of the offered insurance for the rate to apply.