Workforce Bulletin

Our colleagues have issued a new client advisory: “New York State Department of Labor Adopts Wage Deduction Regulations,” by William J. Milani, Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, Anna A. Cohen, and Jennifer A. Goldman.

Following is an excerpt:

The New York State Department of Labor (“DOL”) has adopted wage deduction regulations (“Final Regulations”) pertaining to the expanded categories of permissible wage deductions in the New York Labor Law, effective October 9, 2013.  As we previously reported (see the Act Now Advisory entitled “New ...

Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") requires certain public companies to disclose how the compensation of the company's chief executive officer ("CEO") compares to the compensation of employees generally. The disclosure must include (i) the CEO's annual total compensation, (ii) the median of the annual total compensation of all employees other than the CEO, and (iii) the ratio of (i) over (ii).

Like many of Dodd-Frank's requirements, disclosure of the CEO pay ratio was not required until implementing regulations were ...

I was recently asked an interesting question by an industry contact:

"Employers often are told to know and exercise their rights during an OSHA inspection.  What exactly are employers' rights during an OSHA inspection?"

While it may not feel like it during an inspection, employers have many rights before, during, and after OSHA inspections.

Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA.  What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within.  Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect.  We rarely advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.

Another right employers should consider asserting with regard to OSHA inspections is the right to exclude non-employee third parties (such as a union representative at a non-union workplace) from participating in the inspection process. OSHA recently issued a formal Interpretation Letter of the regulation covering who may participate in OSHA walk-around inspection (29 C.F.R. 1903.8(c) - Representatives of Employers and Employees).  Specifically, OSHA expressed its belief that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employees’ representative during an inspection.  Notwithstanding OSHA's interpretation letter, the plain language of the standard makes it clear that such involvement by a third party union representative is not permitted under the law, and employers may exercise their rights to exclude third parties from the inspection by demanding and challenging a warrant under those circumstances.  If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate.  One approach would be to demand and challenge an inspection warrant.  If the non-employee is permitted on the premises, employers should be explicit about who bears responsibility for any injury to that person, who is responsible for any PPE, determine whether that person is trained on any hazards that may be present or has any necessary security clearances for sensitive activities that may be in view, and how to protect any proprietary processes from being revealed.  Here is an article we wrote on this issue when the interpretation letter was released.

Also before inspections begin, employers have the right to an opening conference.  In my opinion, this is the most important stage of the inspection because it is the time when employers can:

1. Negotiate to narrow the scope of the inspection;
2. Can ask questions about the purpose of and probable cause justifying the inspection; and
3. Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).

If the inspection was initiated by an employee or former employee complaint, employers also have a right to access a copy of the complaint before consenting to the inspection.

Once an OSHA inspection begins, employers also have many rights, including a right to accompany the compliance officer at all times during the walkaround, and to take side-by-side photographs or other physical evidence that OSHA takes during the inspection.  Another important right relates to management interviews.  Interview statements by management representatives bind the company, and since the OSH Act gives employers the right to be present when binding statements are taken, employers therefore have a right to be present and participate in interviews of management witnesses, regardless of whether the management witness wants the representative there.

By: Robert S. Groban, Jr. and Matthew S. Groban

On June 28, 2013, a District of Columbia restaurant sued its former executive chef to recover the expenses incurred to secure his H-1B visa.  See Rasika West End LLC v. Tyagi, No. 13-0004426 (D.C. Super. Ct. filedJune 28, 2013). According to the complaint, the employer entered into a thirty-six (36) month contract with the H-1B employee, and claimed that it would take that long to recover, among other things, funds spent to secure the approved H-1B petition the employee needed to assume the position. The complaint further alleges ...

By Amy Messigian

After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.

Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC ...

Our Epstein Becker Green colleagues have posted an NLRB update on the Management Memo blog: “Impact of Government Shutdown on NLRB, Part II: Some Proceedings Delayed Indefinitely, Extensions to Serve and File Documents Granted, New Charges Must Be Filed Within Six Months,” by Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry.

Following is an excerpt:

On Monday October 1, 2013, the Board published a Notice in the Federal Register to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB ...

The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.

Following is an excerpt:

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

Read the full post here.

We recommend this post that was recently published on October 1st, 2013 on the Management Memo blog: “Government Shutdown “Closes” NLRB: 1600 of 1611 Employees Furloughed,” by Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry, our colleagues at Epstein Becker Green.

Following is an excerpt:

The shutdown of the federal government that took effect at 12:01 a.m. Tuesday October 1^st has shut down all non-essential operations of the US government, including those of the National Labor Relations Board (Board or NLRB).

The Board’s Contingency Plan for Shutdown in the ...

By Casey M. Cosentino and Eric J. Conn

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations.  As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

On September 10, 2013, with the government shutdown looming, the Assistant Secretary of Labor for OSHA, David Michaels, issued a memorandum outlining OSHA's  “Contingency Plan for Suspension of Agency Operations ...