Conn Maciel Carey Welcomes Former CSB Attorney-Investigator to the Firm

beeta lashkariWashington, D.C.-based Labor & Employment and OSHA / Workplace Safety boutique law firm Conn Maciel Carey LLP is pleased to announce that Beeta B. Lashkari has joined the firm as an attorney in its Washington, D.C. office.

Ms. Lashkari, a former attorney-investigator at the U.S. Chemical Safety and Hazard Investigation Board (CSB), has extensive experience handling government investigations and is equipped to defend clients in an array of matters before federal, state, and local government agencies, including OSHA 11(c) and whistleblower retaliation claims and EEOC investigations and enforcement actions.

Ms. Lashkari will assist the Labor and Employment practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions, including those from the EEOC, the Department of Labor’s Wage and Hour Division, the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Environmental Protection Agency, the CSB, and state and local employment agencies.  In addition to her work with the Labor and Employment practice group, Ms. Lashkari will assist the OSHA Workplace Safety practice group in advising and representing clients in a wide-range of inspections, investigations, and enforcement actions before federal OSHA and state OSH agencies.

“We are thrilled to have Beeta join our growing niche practice and look forward to utilizing her government investigation experience to the benefit our employer clients,” said Kara M. Maciel, Chair, Labor & Employment Practice Group.

 

Magic Bullets and the Joint Select Committee on the Solvency of Multiemployer Pension Plans

By: Mark Trapp

shutterstock_pensionEarlier this year, the Bipartisan Budget Act of 2018 established the Joint Select Committee on the Solvency of Multiemployer Pension Plans (“Joint Select Committee”). This Committee, made up of sixteen lawmakers (eight from the House, eight from the Senate, eight Republicans and eight Democrats), is charged with preparing a report and recommended legislative language to “significantly improve the solvency” of multiemployer pension plans and the Pension Benefit Guaranty Corporation (“PBGC”). Notably, if the Joint Select Committee gets majority approval from both sides (that is five of eight Democrats and Republicans), the resulting legislation will be guaranteed an expedited vote in the Senate, with no amendments allowed. Following the passage of the Multiemployer Pension Reform Act of 2014, which is largely viewed as failing to adequately address the multiemployer funding issues, this Joint Select Committee presents the first (and maybe the last) realistic bipartisan chance to address the issue.  The Committee is required to have at least five public meetings and held its first last week. The same day that the Joint Select Committee met, the U.S. Chamber of Commerce issued a two-page document titled “Multiemployer Pension Reform Principles.” This document stresses the urgent need for a solution, stating that legislation to “save” multiemployer plans “must be passed as soon as possible.” It argues that federally-backed loans are the key to any solution, and encourages Congress to consider proposals that put “skin in the game for all.” This means benefit cuts.

Although not much was accomplished at the hearing, it is worth noting a few items. Co-Chairman Senator Hatch (R-UT) set the tone when he said that “none of this process is going to be easy. There are no magic bullets, and any solutions we come up with are bound to make at least some people unhappy.” Many of the other Committee members spoke of the necessity to act in a bipartisan manner. Continue reading

DOL Announces FLSA Self-Audit Program

1On March 6, 2018, the U.S. Department of Labor (“DOL”) announced that it would soon be implementing its Payroll Audit Independent Determination (“PAID”) program, which will permit employers to self-report potential violations of the Fair Labor Standards Act (“FLSA”) without fear of exposure to liquidated damages.  Although the DOL’s news release frames this program as a boon for employees as they can receive back wages without the substantial cost of litigation, the program could also be beneficial to certain employers.  Indeed, the program is designed to encourage proactive resolution of potential minimum wage and overtime violations by limiting potential damages to solely the back wages owed.  The DOL’s Wage and Hour Division (“WHD”) intends to employ the PAID program nationwide for 6 months, at which time it will evaluate the effectiveness of the program and its future options.

Under the FLSA, an employee may be entitled to penalties and liquidated damages if she can successfully show that her employer failed to pay the required minimum wage or make overtime payments.  The FLSA establishes that liquidated damages are equal to the amount of back wages owed.  In other words, an employer could be required to pay double the employee’s back pay.  Courts have generally held there is a presumption in favor of liquidated damages unless the employer can show (1) it acted in good faith; and (2) it had reasonable grounds to believe it was complying with the law.  This puts a burden on the employer to provide evidence that substantiates both these elements.  If it cannot present such evidence, the employer faces a substantial financial burden in damages owed, particularly in the case of a collective action – a very common occurrence under the FLSA. Continue reading

Cal/OSHA Compels Hospitality Employers to Clean Up Their Act, Ergonomically Speaking

By Aaron R. Gelb and Andrew J. Sommer

Background About Ergonomics

An ergonomic hazard is a physical factor within the work environment that has the potential to cause a musculoskeletal disorder (MSD).  MSDs are injuries and disorders that affect the human body’s movement or musculoskeletal system; i.e., muscles, tendons, ligaments, nerves, discs, blood vessels, etc.  Common ergonomic hazards include repetitive movement, manual handling, workplace design, uncomfortable workstation height, and awkward body positioning.  The most frequent ergonomic injuries (or musculoskeletal disorders) include muscle/tendon strains, sprains, and back pains, Carpal Tunnel SyndromeTendonitis, Degenerative Disc Disease, Ruptured / Herniated Disc, etc., caused by performing the same motion over and over again (such as vacuuming), overexertion of physical force (lifting heavy objects), or working while in an awkward position (twisting your body to reach up or down to perform a work task).

MSDs are the single most common type of work related injury.  According to Bureau of Labor Statistics data, MSDs alone account for nearly 30% of all worker’s compensation costs.  OSHA estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses (approx. 34% of all lost workdays reported to the BLS), and employers spend as much as $20 billion a year on direct costs for MSD-related injuries and up 5x that on indirect costs (e.g., lost productivity, hiring and training replacement workers, etc.).

Federal OSHA’s Ergonomics Enforcement Policy

Nevertheless, federal OSHA has been lost in the woods for years searching for a coherent ergonomics enforcement policy.  In the final days of the Clinton Administration in November 2000, federal OSHA promulgated an extremely controversial midnight Ergonomics Standard, requiring employers to take measures to curb ergonomic injuries in the workplace.  Days later, utilizing the Congressional Review Act (CRA), the Republican Congress voted to overturn the ergonomics regulation and newly elected President George W. Bush signed the resolution of disapproval, repealing the ergonomics standard. Because the CRA prevents the agency from promulgating a substantially similar regulation, ergonomic injuries have since gone unregulated, other than sparing use of the general duty clause.

Although employers in states subject to federal OSHA jurisdiction have thus been able to adopt a wait-and-see approach with respect to ergonomics enforcement generally, and specifically how the Trump Administration will roll-out its overall deregulation agenda to workplace safety matters, some states with their own OSH Programs are stepping in to fill the void.

Cal/OSHA on Ergonomics

To no one’s surprise, California is one state pushing progressive new worker safety regulatory requirements, even as federal OSHA retreats in that area.  One significant new move by Cal-OSHA is the recently approved safety standard on Hotel Housekeeping Musculoskeletal Injury Prevention.

This standard, which focuses on ergonomic hazards associated with housekeeping positions, follows closely on the heels of a series of “panic button” ordinances enacted by several large cities across the country to protect housekeepers from sexual assault by hotel guests and/or visitors.

The standard, which will likely go into effect July 1st or possibly April 1st, applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public, from high-end hotels and resorts, to motels, inns and bed & breakfasts.  The standard specifically excludes from this definition hospitals, nursing homes, residential communities, prisons, shelters, boarding schools and worker housing.

Covered establishments will be required, under the new standard, to develop, implement and maintain a written Musculoskeletal Injury Prevention Program (“MIPP”) that is tailored to hazards associated with housekeeping.  Employers have the option of including the MIPP with their preexisting Injury & Illness Prevention Program (“IIPP”) or to create a standalone program specifically for housekeeping MSD risks.

Regardless of its form, the MIPP must be available to covered employees on any shift.  Notably, employees must also be able to access the MIPP electronically — a requirement that may pose a challenge to smaller establishments.

The required elements of a housekeeping MIPP will be familiar to any employer that has developed an IIPP, which should already include:

  • worksite hazard evaluations;
  • injury investigations;
  • hazard abatement efforts;
  • employee training; and
  • recordkeeping.

Notably, covered employers must also complete an initial worksite assessment within three months of the effective date of the standard, which assessment is intended to identify and address a variety of potential ergonomic risk factors, ranging from unpredictable trauma occurrences such as slips, trips and falls, to more traditional repetitive stress MSD concerns such as regular and frequent reaching above shoulder height, lifting, bending, kneeling, squatting, pulling and/or pushing.

Perhaps most controversial about Cal/OSHA’s new Hotel Housekeeping Ergo rule, though, is the agency’s effort to wade into operational concerns by requiring employers to assess “excessive work rates” as well as “inadequate recovery time” between tasks.

Covered employers should act promptly so they are prepared once the standard goes into effect— whether that is in April or July of this year.  Whether it is spring or summer, lodging establishments that wait to the last minute will be feeling the heat as they attempt to develop the required program and conduct the initial worksite assessment within three months of the standard’s effective date.

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For more information about Cal/OSHA’s new Hotel Housekeeping Ergonomics Rule and other Cal/OSHA developments, join Conn Maciel Carey attorneys for a complimentary webinar on July 10, 2018 – “New Cal/OSHA Issues California Employers Must Track.”

Second Circuit Rules Title VII Bars Sexual Orientation Discrimination

shutterstock_gender diversityAlthough the Supreme Court has not taken up the issue and the status of sexual orientation discrimination remains uncertain, another Circuit Court of Appeals has now affirmatively ruled on the issue.  In a 10-3 en banc decision, the U.S. Court of Appeals for the Second Circuit recently ruled in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018) that Title VII of the U.S. Civil Rights Act prohibits sexual orientation discrimination.

The Second Circuit’s decision deepens the existing circuit split on Continue reading

Taxing Decisions: New Rules on Deductions and Credits in the Employment Context

By: Aaron Gelb

CalculatorAs many individuals turn their attention to preparing and filing their tax returns on or before April 15, there are two notable changes to the tax code of which employers should take note.  These changes, tucked away in the 2017 Tax Act (also known as the Tax Cuts and Jobs Act) (the “Act”), have gone largely unnoticed while most Americans have focused on the on-again, off-again government shutdown drama.  The first change involves the deductibility of settlement payments made to resolve sexual harassment/abuse claims, while the second is a tax credit available, in certain circumstances, to employers that offer paid family leave to their employees.

Sexual Harassment and/or Abuse Settlement Payments

Section 13307 of the Act prohibits employers from deducting any settlement or payment related to sexual harassment or abuse claims if the settlement or payment is made subject to the sort of nondisclosure provisions commonplace in settlement agreements.  This means that if an employer insists that the complaining employee keep the terms of the agreement confidential, the monies paid in exchange for the release are not deductible.  The same presumably holds true if the employer conditions said payments on the claimant agreeing not to disclose the allegations set forth in the original claim that precipitated the settlement. Continue reading

Kara Maciel to Speak at HR in Hospitality Conference on Marijuana Laws

marijuana pictureOn March 6, 2018, Kara Maciel, Chair of Conn Maciel Carey’s Labor & Employment Practice Group will present at the HR in Hospitality Conference on the recent trend of medical and recreational marijuana laws.

As we have written about in the past, to date, 26 states and the District of Columbia have legalized medical marijuana, and eight states (plus D.C.) permit its recreational use.  As marijuana laws become more liberal and usage becomes more pervasive, employers must address the emergent issue of marijuana in the workplace and the legal implications of employee use. For example, must employers make accommodations for employees with valid marijuana prescriptions, allowing them to use the drug on the job?  At this session, Ms. Maciel will discuss solutions to these and other accommodation issues, with a look at recent court opinions.

The HR in Hospitality conference is a unique event where hundreds of human resources and labor relations professionals from hotels, resorts, restaurants, casinos, cruise lines come together to learn legal and practical guidance on issues specifically tailored to the hospitality industry!  To learn more about the conference and to register, click here.