New Year Reminders for Employers & December 2017 Updates in Labor and Employment Law

New Year Reminders for Employers

2018 is almost here, and the new year is a good opportunity to take stock of your company’s employment procedures and ensure compliance with the latest developments and regulatory changes.  In particular, the new year is a great time to ensure that all employee handbooks, and all onboarding materials, are up to date and compliant with current laws and standards.

Employee Handbooks and Onboarding Materials

One specific area employers should review is compliance with recently updated OSHA rules. In 2017, OSHA began enforcement of its new rules relating to recording and electronic reporting of occupational injuries and illnesses.  Under the new rules, OSHA requires employers to implement a reasonable procedure for employees to report work-related injuries and illnesses and to inform employees of that procedure.  OSHA also now requires employers to inform employees of their right to report work-related injuries and illnesses free from discrimination and retaliation and prohibits employers from discriminating or retaliating against an employee for making a report.

Given the new rules, it would be wise to review the work-related injury and illness policies within your organization’s existing handbooks.  Employers should ensure that their handbooks outline a reasonable procedure for employees to report work-related injuries and illnesses, and state clearly that no discrimination or retaliation will result from an employee making a report. 

According to OSHA, to be reasonable, an employer’s procedure must not deter or discourage an employee from accurately reporting a workplace injury or illness.  Two specific areas OSHA focuses on to determine whether a procedure is reasonable are the “time” and “means” for filing a report.  In other words, a policy that allows an employee to file a report as soon as practicable after realizing an injury would be reasonable.  However, a policy that has a rigid, immediate-reporting requirement that disciplines employees for late reporting would be unreasonable.  Additionally, a handbook policy that allows employees to make a report by various means (phone, email, or in person) would be reasonable, whereas a policy requiring in person reporting at a location remote from the employee’s work site would be unreasonable. 

Finally, any handbook policies related to automatic post-injury drug testing should be reviewed to ensure that they do not deter reporting.  OSHA has made clear that an employer must have a reasonable basis for believing that drug use could have contributed to an injury before conducing a drug test based on that injury.

The new year also presents a good opportunity to evaluate all the items on your new hire checklist – not just the handbook, but the offer letter, employment agreement, drug testing policy, pre-employment testing policies, and so on.  It’s a good time to ensure that these materials are clearly communicating the terms of a new employee’s employment, and that they comply with the latest federal, state and local laws, both in substance and in the way that substance is communicated.  Make sure all materials include a statement that employment is at-will, for instance, that if a job offer is contingent on passing a background check or pre-employment drug screen, that is clearly communicated in the offer letter.

Considerations for Government Contractors

Additionally, if your organization is a government contractor, the turning of the calendar is also a good time to ensure that your affirmative action plan is updated. If you’re a federal contractor, this has been a year of hopeful uncertainty.  The Trump administration promised to be less demanding and provide less oversight than its predecessor, and in many ways, that has come to pass.  For example, the so-called “Blacklisting Rule,” which would have imposed certain onerous reporting requirements on contractors, but was halted by court order in October 2016, shows no sign of ever being revived, and a planned expansion of the EEO-1 reporting requirements also appears to have been scrapped. Moreover, a merger of the Office of Federal Contract Compliance Programs (“OFCCP”) and Equal Employment Opportunities Commission (“EEOC”) has been proposed, which may ultimately reduce the OFCCP’s regulatory reach and capacity further, though it will be at least 2019 before the proposed merger occurs. 

Recently, the OFCCP did announce some changes in key personnel.  On December 12, the agency’s website was updated to reflect that Ondray T. Harris would take over as the new OFCCP Director (replacing acting director Thomas M. Dowd), with Dowd moving into the position of Deputy Director, and Craig E. Leen, who some speculated may become the new director, is instead listed as a “Senior Advisor.” Harris served as the Director of the Department of Justice’s Community Relations Service beginning under President George W. Bush, among other things, while Leen was the Coral Gables, Florida city attorney.  It is, of course, too early to tell in what direction the new leadership may take the OFCCP.

In the meantime, if you are a contractor with a January 1 – December 31 plan year, it is important to update your affirmative action plan(s) for the coming year.  If you are both a federal and a state (or municipal) contractor, it is equally important to ensure that your plan(s) meet the requirements of all the jurisdictions for which you are required to provide one.  The Minnesota Department of Human Rights, for instance, has been actively auditing contractors, and requires them to keep and submit information that can be vastly different from and more extensive than that required by the OFCCP.  It’s important for every contractor to know when its reporting period is, and to ensure that its affirmative action plans meet all its jurisdictions’ requirements and are updated when due.

December 2017 Updates in Labor and Employment Law

The NLRB Issues a Series of 3-2 Rulings that Benefit Employers

On December 14 and 15, the National Labor Relations Board (“NLRB” or the “Board”) issued three new decisions that each appear to have benefited employers.  In The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the NLRB held that employers’ rules do not violate the National Labor Relations Act (the “NLRA”) simply because they could be “reasonably construed” as prohibiting an employee’s exercise of rights under the Act, but rather, the Board will consider both (1) the extent of the rule’s potential impact on NLRA rights and (2) legitimate justifications associated with the rule.  In Boeing, for example, the Board held that the challenged rule had legitimate justifications that included safety and security, protecting corporate property, and preventing terrorism, and that those justifications outweighed any potential impact on NLRA rights.

Next, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), the NLRB overturned its prior (and also 3-2) decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), regarding the proper test to be applied in determining whether two entities are joint employers for collective bargaining purposes.  While the Browning-Ferris rule held two entities to be joint employers even where one never actually exercised any control over employees, but simply could exercise that control, the NLRB in Hy-Brand declared that this holding exceeded the Board’s statutory authority, and that joint-employer status again requires proof that the entities have both actually exercised significant direct and immediate control over the essential terms of the employees’ employment.

Finally, in PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the NLRB overturned another prior decision, Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).  These cases both involved disputes over the appropriate sizes of bargaining units.  In PCC Structurals, the NLRB returned to the “traditional community-of-interest standard” it applied prior to Specialty Healthcare, which shifts the burden of proof back to the unions to show that proposed smaller bargaining units (so-called “micro units”) are proper, where the employer claims that a larger group of company employees share the same interests and should be represented together.

Each of these cases has the potential to significantly impact the operation of a company with a unionized workforce, and they will be dealt with more fully in a later publication.

The Minneapolis Minimum Wage Changes Begin to Take Effect

As employers with employees who do work within the City of Minneapolis are no doubt already aware, the minimum wage in that city will begin rising on January 1, 2018, gradually increasing to $15.00 an hour by 2024.  The first phase applies only to employers the ordinance has defined as “large employers”—those employing 100 or more people performing work for compensation. Beginning on January 1, all employees of those large employers who are performing work in Minneapolis must be paid a minimum of $10.00 per hour for that work.

If you have questions regarding this article or any other labor and employment law matters, please contact Bill Parker (wparker@seatonlaw.com or 952-921-4602) or any other attorney at Seaton, Peters & Revnew, P.A.

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