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On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.

The HERO Act

In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act.  Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.

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Continue Reading DOL Issues New York HERO Act Workplace Safety Proposed Rule, Including Workplace Safety Committee Requirements

Featured in #WorkforceWednesday:  As businesses across the United States open up, workers may increasingly turn to unions to help support their safety. Employers should take steps to properly prepare for this resurgence in union activity. Attorney RyAnn Hooper explains more.

Video: YouTube, Vimeo, MP4, Instagram.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

  • State Legislation Heats Up
  • NLRB Overturns Another Long-Standing Precedent
  • SCOTUS October Term 2018 Wraps Up
  • Tip of the Week: How inclusion and trust

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A Full Menu of Potential Legal Issues for Hospitality Owner/OperatorsIn the new issue of Take 5, our colleagues examine important and evolving issues confronting owners, operators, and employers in the hospitality industry:

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Fifth Circuit Pays Special Deference to NLRB’s Determination that Hotel Management Company Acted With Anti-Union Animus In Outsourcing Housekeeping DepartmentA recent decision of the U.S. Court of Appeals for the Fifth Circuit illustrates the potential pitfalls of outsourcing in the face of a union campaign, as well as the steep hurdle employers face in overturning a decision of the National Labor Relations Board (“NLRB”). In Remington Lodging & Hospitality, LLC v. NLRB, the…

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility…

By Paul H. Burmeister and Eric J. Conn

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections.  OSHA responded affirmatively.

29 C.F.R. 1903.8(c) provides:

“The representative(s) authorized by employees shall be an employee(s) of the employer.  However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.”  This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.

OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters.  Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.

Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative. OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.…
Continue Reading Employees at a Non-Union Worksite May Select a Union Representative for an OSHA Inspection

by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky

President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan…