Workforce Bulletin

by Lauri F. Rasnick

FINRA is contemplating a new rule that would require brokers transferring firms to inform clients about their signing bonuses or other compensation they are receiving in connection with their moves.  The potential rule, which is now out for public comment, is being considered to protect customers.   By mandating disclosure of the money offered in connection with a move, the client can consider the true motivation behind the move and whether it is in the client’s best interest to transfer all of his or her business.  Indeed, many firms luring over brokers offer ...

By: Jordan B. Schwartz and Eric J. Conn

Section 17(e) of the Occupational Safety and Health Act (“OSH Act”) provides for a Class B misdemeanor criminal penalty, including imprisonment up to six months and substantial monetary fines if an employer’s willful violation of any OSHA standard causes the death of an employee.  Section 17(e) states:

“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”

Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).

To obtain a conviction under Section 17(e), a prosecutor must establish beyond a reasonable doubt (unlike the lower civil standard for ordinary OSHA enforcement actions) that:

1. An OSHA Standard (not the General Duty Clause) was violated;
2. The violation was committed by the employer;
   • Courts evaluating OSH Act criminal prosecutions distinguish between “employees” and “employers.” Only in extremely rare circumstances are individuals considered to exert so much control over a corporate entity that the individual would be considered, for all intents and purposes, to be “the employer” for purposes of an OSH Act criminal charge. Although a corporate officer or director might in some circumstances be deemed to be the “employer,” this is only in the case where “an officer’s or director’s role in a corporate entity (particularly a small one) may be so pervasive and total that the officer or director is in fact the corporation and is therefore an employer under §666(e).” U.S. v. Cusack, 806 F. Supp. 47, 50 (D.N.J. 1992).
3. The violation of the Standard was the direct cause of an employee’s death; and
   • Prosecutors must prove beyond a reasonable doubt that the conduct which amounts to the violation of an OSHA standard was both the “cause in fact” (i.e., the employer’s conduct was the “but-for cause” of the accident) and the “legal cause” (the harm was a foreseeable and natural result of the conduct) of the injury.
4. The violation was committed Willfully by the employer.
   • Courts are in substantial agreement that “willfully” under Section 17(e) refers to a deliberate action taken by the employer with knowledge of both the hazardous condition and the OSH Act’s requirements (i.e., the employer knew the conduct was dangerous and unlawful).

Here is some guidance on the Justice Department’s website about OSH Act criminal cases.

In the forty years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – less than two per year-- and only approximately a dozen have resulted in criminal convictions.  Historically, the prosecutions have typically targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with violations related to an employee fatality.  The cover-up was worse than the crime.  Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also appear to have been more likely to face charges.

Recently, however, OSHA has begun to increase the frequency in which it refers cases to the Justice Department for investigation by a U.S. Attorney and possible criminal sanctions.  In fact, we have been told off-the-record from several representatives within OSHA and the Department of Labor Solicitor’s office (OSHA’s lawyers), that as a matter of policy, OSHA now makes a criminal referral in every case involving an employee fatality and a willful violation.  Regardless whether that is in fact happening, in the past few years, we have certainly seen a rise in the instances of charges being brought and/or significant plea deals being negotiated.

Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on financial services employers and their group health plans and programs.

Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit ...

Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on hospitality employers and their group health plans and programs.

Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit ...

Please join Epstein Becker Green’s Health Care & Life Sciences, Employee Benefits, and Labor & Employment practitioners as we continue to review the Affordable Care Act and its ongoing impact on retail employers and their group health plans and programs.

Since the Presidential election, The U.S. Department of Health and Human Services is moving quickly to implement the Affordable Care Act. Rules have been released in the past few weeks concerning participation in federal exchanges, discrimination based on pre-existing conditions, essential health benefit requirements, and ...

Back in March, we answered five frequently asked questions related to OSHA inspections.  We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update Blog for OSHA FAQ posts.  For each of the posts in this OSHA FAQ Series, we have included both a textual response and a video response with slides and audio.

In this post, OSHA FAQ #3, we address a very common question regarding whether (and for how long) employers can ask OSHA to delay the start of an inspection to allow a ...

Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for retail employers. Registration is complimentary.

On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”

The webinar discussed:

• Proposed regulations and the impact these regulations could have on your overall wellness strategy
• Areas where employer ...

Please join Epstein Becker Green’s Health Care & Life Sciences and Labor & Employment practitioners in a webinar series for Hospitality employers.

On Friday, November 30, Epstein Becker Green attorneys Frank C. Morris, Jr., and Adam C. Solander offered a one-hour webinar titled “The New Wellness Program Regulations, Part of a Webinar Series on the New ACA Implementation Regulations: Employer Impact.”

The webinar discussed:

• the proposed regulations and the impact these regulations could have on your overall wellness strategy
• areas where employer comment is needed

Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: "Employer Posting Requirements Under New Jersey Law." Following is an excerpt:

The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees' workplace rights and responsibilities under state law.

Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to ...

by Michael D. Thompson

A posting and distribution requirement added to New Jersey’s prohibition on discrimination in pay went into effect on November 19, 2012.  Employers will not, however, be obligated to comply with the requirement until the New Jersey Commissioner of Labor and Workforce Development issues the required notification form.

The notification form will explain the prohibition against gender discrimination in pay, compensation, benefits or other terms and conditions of employment (as set forth in N.J.S.A. § 34:11-56.2). 

Once the form is prepared, every New ...