How to avoid spending an unnecessary $525 this year

June 2, 2016 at 3:36 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, New employment laws/amendments, retaliation | Leave a comment
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The U.S. Equal Employment Opportunity Commission on Wednesday June 1, 2016 increased the maximum penalty for employers that violate notice posting provisions of Title VII and other statutes from $210 to $525 per violation.  To avoid this $525 penalty, simply make sure your mandatory postings are up to date AND POSTED regarding Title VII and other anti-discrimination, anti-harassment and anti-retaliation laws.  Simple task for employers, post the laws and avoid paying $525 – think of what else you could do with $525 instead of paying a fine for simply failing to tack up a poster.

Placing such postings in an area where employees will see them is key to compliance here people!  Posting on the bathroom door, on the inside of the bathroom door, on the refrigerator, in a conspicuous spot in the break room are all good places to ensure that the postings are seen.

Reading this blog post does not create an attorney client relationship between Hultman Sensenig + Joshi and the reader, nor does this blog’s publication constitute legal advice to the reader.  If the Firm can be of assistance, please let us know.  

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DOL’s new Overtime Rules – this 3 minute video from the U.S. DOL is worth your time

May 24, 2016 at 3:59 pm | Posted in Uncategorized | Leave a comment
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https://www.dol.gov/featured/overtime

This simple presentation provides background as to the ideals behind the recent DOL overtime and salary basis changes.  Changes are effective in December of this year so employers need to look at their job descriptions, look at the hours worked, and engage in some analysis as to their business needs in order to remain complaint with the updated regulations.

 

From Hultman Sensenig + Joshi:  Reading this blog does not create an attorney client relationship nor is legal advice given in this blog.  The overtime issues are very serious for employers and we do suggest reviewing your policies and procedures to prepare for the upcoming changes – and enforcement efforts.  Let us know if we can help you.

 

EEOC issues new Fact Sheet on LGBT/Transgender Bathroom Issues

May 5, 2016 at 3:22 am | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC’s website:  

U.S. Equal Employment Opportunity Commission sent this bulletin at 05/02/2016 03:11 PM EDT

Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964

“Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

In addition to other federal laws, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:
denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi: “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

Further information from other federal government agencies includes: A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), https://www.osha.gov/Publications/OSHA3795.pdf, and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/, issued by the U.S. Office of Personnel Management.

If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/employees/howtofile.cfm.
Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm

From Hultman Sensenig + Joshi:  The EEOC and the DOL have been very active lately with issuing new guidelines.  Employers should take note as to all of this activity and respond proactively by reviewing policies and procedures and looking at inclusivity in the workplace.  As you consider such policies, consider the costs of litigation – and the impact of being the employer that makes a splash in the local media for alleged discriminatory practices.  Reading this blog does not create an attorney client relationship nor is legal advice being provided by your reading this blog.  

 

 

 

EEOC continues to be on the forefront of LGBT issues

April 26, 2016 at 3:58 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
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Directly from the EEOC and found on their website:

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

Overview

EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
Through investigation, conciliation, and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias. The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013. A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

The information provided below highlights what you should know about EEOC’s outreach and enforcement in this area.

Examples of LGBT-Related Sex Discrimination Claims

Some examples of LGBT-related claims that EEOC views as unlawful sex discrimination include:
Failing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Denying an employee a promotion because he is gay or straight.
Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

See How to File a Charge of Employment Discrimination for information about filing a Title VII charge of sex discrimination in employment related to gender identity or sexual orientation bias. There is a different complaint process for federal employees.

Applicable Federal Law

EEOC is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee, or former employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who participate in an employment discrimination proceeding – for example by filing an EEOC charge, cooperating with an EEOC investigation, or participating in an employment discrimination lawsuit.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

Over the past several years the Commission has set forth its position in several published decisions involving federal employment. These decisions explain the legal basis for concluding that LGBT-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.

Sex Discrimination – Transgender Status

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.

The Macy decision explains that allegations of gender identity/transgender discrimination necessarily involve sex discrimination. Such cases can be viewed as sex discrimination based on non-conformance with gender norms and stereotypes under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, and based on a plain reading of the statute’s “because of . . . sex” language.

Applying Macy, the Commission has also held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).

Sex Discrimination – Sexual Orientation

In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

Charge Data

In FY 2015, EEOC received a total of 1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status. This represents an increase of approximately 28% over the total LGBT charges filed in FY 2014 (1,100). EEOC resolved a total of 1,135 LGBT charges in FY 2015, including through voluntary agreements providing approximately $3.3 million in monetary relief for workers and achieving changes in employer policies so that discrimination would not recur. This reflects increases of 34% in the number of resolutions over FY 2014 (847) and 51% in the amount of monetary relief over FY 2014 ($2.19 million). Please refer to the chart which shows charges received or resolved during FY 2015, shown at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Conciliation and Litigation

When the Commission finds reasonable cause to believe that discrimination has occurred, it seeks to resolve the matter voluntarily through informal means of conciliation, conference, and persuasion. If the Commission is unable to secure a voluntary resolution, it has authority to file suit in federal court. In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Read about examples of pending and resolved EEOC litigation involving Title VII sex discrimination claims brought on behalf of LGBT individuals, as well as EEOC amicus briefs filed in suits brought by private individuals raising these issues.

Federal Sector Enforcement

In the federal sector, EEOC has implemented its priority for covering LGBT individuals in a variety of ways:

Tracking gender identity and sexual orientation appeals in the federal sector
Issuing 20 federal sector decisions in FY 2015, including finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process. For example, in Larita G. v. U.S. Postal Service, EEOC Appeal No. 0120142154 (Nov. 18, 2015), EEOC reversed the Agency’s dismissal of a hostile work environment claim on the basis of sexual orientation because such an allegation is necessarily an allegation of sex discrimination under Title VII.
Establishing an LGBT workgroup to further EEOC’s adjudicatory and oversight responsibilities
Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site
Providing technical assistance to federal agencies in the development of gender transition policies and plans
Providing LGBT related outreach to federal agencies through briefings, presentations, and case law updates

Training and Outreach

EEOC is addressing LGBT legal developments in numerous outreach and training presentations to the public. During FY 2015, field office staff conducted more than700 events and reached over 43,000 attendees where LGBT sex-discrimination issues were among the topics discussed. In the federal sector during FY 2015, there were approximately 53 presentations delivered to over 4,400 federal sector audience members. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach, EEOC is distributing a brochure, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Employees.

Resources

The Commission has issued various technical assistance publications on LGBT issues, including:

Fact Sheet on Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination, http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, http://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
Federal Sector Cases Involving LGBT Individuals http://www.eeoc.gov/federal/reports/lgbt_cases.cfm
Brochure on Preventing Employment Discrimination Against Lesbian, Gay, Bisexual, or Transgender Employees, http://www.eeoc.gov/eeoc/publications/brochure-gender_stereotyping.cfm.
OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment http://www.opm.gov/LGBTGuide

Useful resources from other agencies include:

OPM Guidance on Employment of Transgender Individuals http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/
U.S. Department of Labor/OSHA Guide to Restroom Access for Transgender Workers, https://www.osha.gov/Publications/OSHA3795.pdf
U.S. Department of Justice Memorandum on Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, http://www.justice.gov/file/188671/download

Other Laws

Be aware of other laws that also may apply:

Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance. For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity. Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII. Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity.

For more go to:  https://content.govdelivery.com/accounts/USEEOC/bulletins/1456e7e

From Hultman Sensenig + Joshi:  The EEOC continues to confirm its commitment to equality for all and will pursue this commitment through litigation.  Employers should review their policies and especially their handbooks to ensure whether recent rulings regarding marriage equality  and other rights being granted by the Court are addressed.  There is no attorney client relationship created through the reading of this blog, nor is any legal advice being rendered.  

 

 

 

 

New FMLA Forms issued by Department of Labor – time to throw out the old forms and print some new ones!

June 4, 2015 at 1:57 am | Posted in Uncategorized | Leave a comment
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The new FMLA forms published by the DOL are for use through May 2018.  Very few changes were made, but the Genetic Information Non-Discrimination Act is now specifically referenced as physicians were sometimes providing a little too much information on the forms.

Go to:  http://www.dol.gov/whd/fmla/ and you will find the treasure trove of forms for all of your FMLA needs, including:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility and Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency For Military Family Leave

WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave

And last, but not least,

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Get your shredder working and replace the old FMLA forms with the new ones to remain in compliance.

There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.

Christmas may be over, but you better watch out because DOL is “checking it twice” – and getting the Florida Department of Revenue’s assistance in their initiative to identify – and correct – independent contractor misclassification!

January 14, 2015 at 6:50 pm | Posted in Uncategorized | Leave a comment
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Directly from the U.S. Department of Labor’s website:

News Release
WHD News Release: [01/13/2015]
Contact Name: Tania Mejia or Lindsay Williams
Phone Number: (202) 693-4686 or (678) 237-0630
Email: Mejia.Tania@dol.gov or williams.lindsay.l@dol.gov
Release Number: 15-0034-NAT
US Labor Department signs agreement with Florida Department of Revenue to reduce misclassification of employees

WASHINGTON — Officials from the U.S. Department of Labor and the Florida Department of Revenue today signed a memorandum of understanding with the goal of protecting the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses. Under the agreement, both agencies will share information and coordinate law enforcement. The MOU represents a new effort on the part of the agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The Florida Department of Revenue is the latest state agency to partner with the Labor Department.
In Fiscal Year 2013, WHD investigations resulted in more than $83,051,159 in back wages for more than 108,050 workers in industries, such as janitorial, food, construction, day care, hospitality and garment. WHD regularly finds large concentrations of misclassified workers in low-wage industries.
“Misclassification deprives workers of rightfully-earned wages and undercuts law-abiding businesses,” said Dr. David Weil, administrator of the Wage and Hour Division. “This memorandum of understanding sends a clear message that we are standing together with the state of Florida to protect workers and responsible employers and ensure everyone has the opportunity to succeed.”  “Working with the states is an important tool in ending misclassification,” said Wayne Kotowski, the Wage and Hour Division’s regional administrator for the southeast. “These collaborations allow us to better coordinate compliance with both federal and state laws alike.”  “By partnering with the U.S. Department of Labor we are actively working to level the playing field for Florida’s businesses to stop the misclassification of workers. Businesses that misreport workers obtain an unfair advantage over other law-abiding businesses,” said Florida Department of Revenue Executive Director, Marshall Stranburg.

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.
Memoranda of understanding with state government agencies arose as part of the department’s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Alabama, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington state agencies have signed similar agreements. More information is available on the Department of Labor’s misclassification website at http://www.dol.gov/misclassification/.
The mission of the department is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and ensure work-related benefits and rights. To learn more about the FLSA’s requirements, call the Wage and Hour Division’s toll-free hotline at 866-4US-WAGE (487-9243) or visit its website at http://www.dol.gov/whd/.

From Hultman Sensenig + Joshi: This is a topic near and dear to our hearts; if someone works only for you, is paid a salary, has no tools or equipment, and you control nearly every aspect of their employment, is it highly doubtful that they are a legitimate independent contractor. With this new agreement between the U.S. DOL and the FL DOR, if either Agency pays an employer a visit to review your “employees” vs. “contractors”, the other agency will soon be there to review whether civil money penalties and back taxes are owed – this is an expensive proposition. Be proactive, review the status of the people you engage vs. employ, and get some assistance if you have any questions.

There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.

Workers Compensation and OSHA – strange bedfellows become more acquainted

January 5, 2015 at 7:38 pm | Posted in Employee, Employer, Employment Law, Legal, New employment laws/amendments, OSHA, Workers' Compensation | Leave a comment
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From the Florida Division of Workers’ Compensation:

Beginning January 1, 2015, there will be changes to what employers are required to report to the Occupational Safety and Health Administration (OSHA). OSHA has requested the assistance of the Division of Workers’ Compensation in disseminating this information to Florida employers.

OSHA UPDATE: NEW REPORTING REQUIREMENTS START JANUARY 1.

Employers will now be required to report all work-related fatalities within 8 hours AND all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding out about the incident.

Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident.

The updated reporting requirements are not simply paperwork but have a life-saving purpose: they will enable employers and workers to prevent future injuries by identifying and eliminating the most serious workplace hazards.

Employers have three options for reporting these severe incidents to OSHA. They can call their nearest area office (www.osha.gov/html/RAmap.html) during normal business hours, call the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or they can report online at http://www.osha.gov/report_online. For more information and resources, including a new YouTube video, visit OSHA’s webpage (www.osha.gov/recordkeeping2014) on the updated reporting requirements.

*Employers under Federal OSHA’s jurisdiction must begin reporting by January 1. Establishments in a state with a State run OSHA program should contact their state plan for the implementation date.

To learn more about these issues and other Workers’ Compensation information click here: http://www.myfloridacfo.com/Division/WC/

 

From Hultman Sensenig + Joshi:  This is a new requirement for Florida employers.  If an injured employee is sent to the hospital, Risk Management or HR must be aware of whether the employee is admitted to the hospital within 24 hours of learning about the accident and hospital visit.  This will require extra vigilance on the part of HR and Risk Management as most injured workers don’t realize that hours of observation in a hospital is not actually being admitted and will likely report to a supervisor that they were admitted if they stayed at the hospital for 23 hours.

Your 2015 New Year’s Resolution Courtesy of the U.S. Department of Labor – Update your OSHA Reporting!

December 16, 2014 at 3:26 am | Posted in Uncategorized | Leave a comment
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This posting is taken verbatim from the U.S. DOL’s blog:  http://blog.dol.gov/2014/12/15/a-new-year-new-osha-reporting-requirements/?utm_source=rss&utm_medium=rss&utm_campaign=a-new-year-new-osha-reporting-requirements.

The New Year will be here before we know it! For employers under the federal jurisdiction of the Occupational Safety and Health Administration that means more than just making resolutions, they will need to comply with new reporting requirements going into effect January 1, 2015.

OSHA-flowEmployers will now be required to report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding about the incident. Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident.

There will be three options for employers to report. They will be able to call their nearest area office during normal business hours, call the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or report online.

Since announcing the new requirements in September, we’ve been conducting extensive outreach to make sure employers understand what to do when they go into effect. Just last week, we held a live Twitter chat to answer questions.

During the chat, we answered over a dozen questions. But we noticed a few that seemed to be on everyone’s mind. So, we decided to share with you a little FAQ:

Q: How can an employer confirm the report from an injury has been documented?

A: If you do it online, you will receive email confirmation. By phone, you will be speaking directly to OSHA representatives.

Q: What is the best URL on the OSHA site to point our branch offices to for details of their obligations to report?

A: The best way is to go to: http://www.osha.gov/recordkeeping2014

Q: What constitutes formal admittance for care? Surgeries can be either outpatient or inpatient.

A: The hospital or clinic determines whether the worker was formally admitted as an in-patient.

We also have a variety of additional resources for employers including a dedicated webpage, more FAQs, a Fact Sheet, and a video I recorded to help explain the new requirements.

It’s important to remember that these updated reporting requirements are not simply paperwork but have a life-saving purpose: they will help employers and workers prevent future injuries by identifying and eliminating the most serious workplace hazards.

I think we can all agree that’s something to celebrate in the New Year.

Dr. David Michaels is the assistant secretary of labor for Occupational Safety and Health.

From the Sensenig Law Firm, P.A.:  As we make resolutions to get more exercise, spend more time with family, drink less, and eat healthier foods, let’s add “keep our business healthy” by ensuring compliance with OSHA to the list.  Consider designating someone to be your OSHA point person, make sure your logs and reports are kept up to date and maintained.  Take a look at the FAQ sheet as to what else you may need to do in case of a workplace injury – workers’ compensation is not your only concern.  To quote a favorite line from a venerable old TV show, “Be careful out there.”

Please be aware that reading this blog does not create an attorney client relationship, nor is any information provided in this considered to be legal advice.

U.S. Department of Labor provides assistance to central Florida farmworkers – are you prepared for an audit and in compliance?

November 20, 2014 at 3:59 am | Posted in Uncategorized | Leave a comment
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Directly from the DOL’s website

News Release
WHD News Release: [11/12/2014]
Contact Name: Michael D’Aquino or Lindsay Williams
Phone Number: (678) 237-0630
Email: D’Aquino.Michael@dol.gov or williams.lindsay.l@dol.gov
Release Number: 14-2052-ATL

US DOL helped thousands of agricultural workers in central Florida this year

Investigations find minimum wage, overtime, housing and transportation violations

TAMPA, Fla. — A multiyear enforcement initiative conducted by the U.S. Department of Labor’s Wage and Hour Division has uncovered widespread labor violations in the central Florida agricultural industry. The initiative focused on hand-harvested crops — including citrus, strawberries, tomatoes, blueberries and watermelons — where many vulnerable migrant workers are employed and recovered average back wages of $340 per worker, more than enough to buy a week’s worth of groceries.
The initiative found migrant workers were often required to perform intense physical labor for long periods without compensation in violation of federal law. Other labor violations exposed these workers to unsafe transportation and unsanitary housing conditions. The investigations also found that employment conditions were not disclosed to workers. During fiscal year 2014, the division’s Tampa District Office conducted 155 agricultural investigations and recovered more than $131,000 in back wages for 387 workers. The division also assessed approximately $196,000 in civil money penalties.
“We are working harder and smarter to combat labor violations in the agricultural industry. We are studying employment relationships and directing our enforcement efforts throughout the supply chain to protect workers better and address problems at every level of the industry,” said Dr. David Weil, administrator for the Wage and Hour Division. “All our efforts are aimed at helping move employers toward positive, compliant business practices, so that workers and employers can prosper together.”
“We are committed to strong enforcement, but are also working with the industry to promote long-lasting compliance and a level playing field for law-abiding businesses. For example, we have partnerships with the citrus industry to provide compliance assistance and learn about industry problems. This cooperation has led to increased compliance with labor laws. In 2014, we saw fewer violations in the citrus industry than in 2013,” said James Schmidt, director of the division’s Tampa District Office. “We are eager to work with others, such as strawberry growers, where we continue to find significant labor violations.”
Under the ongoing initiative, investigators will continue to visit fields and packinghouses to assess compliance among agricultural employers, facility owners, growers, farm labor contractors and other businesses providing services to these agricultural operations. Thorough inspections of migrant housing units, vehicles, field sanitation facilities, and employment practices and pay records are being conducted to ensure compliance with applicable child and agricultural labor standards. When violations are found, the division will pursue corrective action, including litigation and the assessment of liquidated damages and civil money penalties, to recover workers’ wages and ensure accountability under the law.
These violations were committed under federal labor laws that set minimum standards for wages and disclosure of employment conditions to workers, basic standards for employers to provide safe and clean housing and safe transportation to workers, and standards for workers’ access to clean drinking water and toilet facilities in the field.
During FY14, the division is focused on educating stakeholders in the agricultural industry and continues to conduct educational outreach sessions, which provide valuable education and compliance assistance to agricultural employers, farm labor contractors and employees.
Most agricultural employers, agricultural associations and farm labor contractors are subject to the Migrant and Seasonal Agricultural Worker Protection Act, which provides protections for migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the department.
The Fair Labor Standards Act requires that covered workers be paid at least the national minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, for hours worked beyond 40 per week. The field sanitation provisions of the Occupational Safety and Health Act require covered employers to provide toilets, potable drinking water, hand washing facilities and information regarding good hygiene practices to their employees.
The Wage and Hour Division’s Tampa District Office can be reached at 813-288-1242. Information on the FLSA and other wage laws is available by calling the division’s toll-free helpline at 866-4US-WAGE (487-9243) and visiting the division’s website at http://www.dol.gov/whd/.

From the Sensenig Law Firm:  For my colleagues and friends in the harvesting and agricultural professions, this is very important for you to know – compliance does have value; compliance affects your bottom line.  Take the upcoming harvesting season and the New Year as a good starting point to make compliance an achievable goal for your business.

Nothing in this blog is to be construed as the Sensenig Law Firm, P.A. as having provided legal advice.  There is no attorney client relationship created as a result of the posting or reading of this blog.  

EEOC shows its intent to protect farmworkers in the workplace

October 24, 2014 at 3:16 pm | Posted in Uncategorized | Leave a comment
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Directly from the EEOC website: http://www1.eeoc.gov/eeoc/newsroom/release/10-22-14.cfm

Federal Agency Charges County Fair Farm With Subjecting Female Farmworkers to Groping, Verbal Abuse, Solicitations for Sex

BOSTON — County Fair Farm, a farm and produce wholesaler located in Jefferson, Maine, violated federal law by creating and maintaining a sexually hostile work environment for female farmworkers since 2003, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a lawsuit today.

The EEOC charged that female farmworkers were groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers while working at County Fair Farm. The lawsuit alleges that female farm workers repeatedly complained to County Fair Farm about the harassment, but the employer failed to take any action to correct the hostile work environment. In one case, the EEOC said, a female farm worker was subject to increased harassment after she complained and was ultimately forced to leave her job.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination and prohibits employers from retaliating against employees who oppose it. The EEOC filed the lawsuit (EEOC v. County Fair Farms, 14-cv- 00415-GZS) in U.S. District Court for the District of Maine in Portland after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary and injunctive relief.

The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.

Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). These policies can include disparate pay, job segregation, harassment and human trafficking. Preventing harassment through systemic enforcement and targeted outreach is another specific SEP priority. To learn more about the EEOC’s strategic plan and enforcement priorities, visit http://www.eeoc.gov/eeoc/plan/sep.cfm.

“Farmworkers are particularly vulnerable to discrimination and harassment,” said Robert D. Rose, regional attorney for the EEOC’s New York District Office. “They are entitled to the full protection of our laws, and the EEOC will vigorously enforce those laws when farmworkers are targets of abuse.”

Sara Smolik, trial attorney in the EEOC’s Boston office, added, “County Fair Farm has a responsibility to protect its workers, not tolerate harassment of them.”

For a select list of pending and resolved EEOC cases involving national origin discrimination and/or immigrant workers from 2005 to the present, see
http://www.eeoc.gov/eeoc/litigation/selected/national_origin_immigrant_workers.cfm.
For a select list of pending and resolved cases involving farmworkers from 1999 to the present, see http://www.eeoc.gov/eeoc/litigation/selected/farmworkers_august_2014.cfm.

The EEOC is responsible for enforcing federal laws against employment discrimination. The Boston Area Office’s jurisdiction includes Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island. Further information is available at http://www.eeoc.gov.

From the Sensenig Law Firm, P.A.

Employers in agriculture need to be aware that vigilance in monitoring what is happening in the fields, in the groves, in the packing sheds, in the slaughterhouses, in the canneries, MUST occur; to claim “too much area to monitor” will not be an excuse the EEOC, or private counsel, accepts.

Having policies in place, and possibly proper insurance, will provide agricultural employers with defenses and funds to respond to litigation. First and foremost, this is a wake-up call for agricultural employers to be more proactive as to their harassment, discrimination and anti-retaliation policies.

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