Cal/OSHA’s Workplace Violence Rules for Health Care Take Effect April 2017

By Andrew J. Sommer and Eric J. Conn

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.  The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.

Rules Apply to Health Care Facilities

Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior.  The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:

“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which [] persons are admitted for a 24-hour stay or longer.”

Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:

  1. Home health care and home-based hospice;
  2. Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
  3. Drug treatment programs;
  4. Outpatient medical services to the incarcerated in correctional and detention settings.

Immediate Requirement to Begin Reporting Violent Incidents

Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving either of the following:

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Uncertainty Surrounding Gender Identity and Sexual Orientation Discrimination and Steps Employers Should Take

All_gender_restroom_sign_San_Diego_airportIn the current legal landscape, the scope of laws prohibiting sex discrimination remains uncertain, especially because the Supreme Court has yet to take up the issue as it relates to LGBT rights.  Most recently, the high court’s decision not to answer the question whether discrimination “on the basis of sex” prohibits discrimination based on gender identity and/or sexual orientation in a case brought by a transgender student raises many questions for employers about compliance with federal anti-discrimination laws.

However, even though this question has not been definitively resolved on the federal level and the new administration recently changed its stance on transgender issues, the Equal Employment Opportunity Commission (“EEOC”) has made discrimination on the basis of gender identity and sexual orientation an enforcement priority in its 2017 Strategic Enforcement Plan.  Moreover, employers need to be mindful that several state and local laws prohibit both sexual orientation and gender identity discrimination and take steps to ensure their employment law policies and training comply with existing federal, state and local law.

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Trump Proposes a $2.5 Billion Cut to the Dept. of Labor’s Budget and to Eliminate Funding for Labor Initiatives and the Chemical Safety Board

By Kara M. Maciel and Eric J. Conn

The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget.  The President’s proposed budget expressly calls for reduced funding for grant programs, job Budget 1training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities.  The budget plan also purports to shift more funding responsibility to the states with labor related programs.  Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.

These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion.  Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.

The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact Continue reading

Join Us for a Webinar on the DOL’s Major Regulatory Initiatives in 2016 and 2017

On Wednesday March 22, 2017, Conn Maciel Carey Labor & Employment attorneys Jordan B. Schwartz and Daniel Deacon will be presenting a free webinar reviewing the major regulatory initiatives promulgated by the US Department of Labor (“DOL”) in 2016 and discussing what employers can expect from the DOL and other federal agencies in 2017.

As employers are undoubtedly aware, the DOL was extremely active in 2016 as President Obama’s second term came to a close.  From its attempt to more than double the threshold salary level to be classified as an exempt employee to requiring that employers provide paid sick leave for contractors, the DOL hit the employer community hard.  However, President Trump and Alexander Acosta, the nominee to be the new Secretary of Labor, will likely attempt to reign in the DOL’s significant activity as well as the activity of other Federal agencies.

This webinar will review the major regulations promulgated in 2016 and provide guidance and recommendations to ensure compliance in 2017.

The webinar begins at 1:00 pm ET.  You can register for the webinar here.  You can also register for Conn Maciel Carey’s entire 2017 Labor & Employment Webinar Series below:

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2017 Labor & Employment Webinar series

Kara Maciel to Speak at HR in Hospitality Conference

main_hosp.jpgThe annual HR in Hospitality Conference, which is a leading conference that has content tailored to meet HR professionals’ needs to stay up to day on the latest legal issues facing the hospitality industry, will be held in Las Vegas on March 27 – 29, 2017.

Kara Maciel, Chair of the Labor & Employment Practice, is pleased to be speaking on a panel with other industry experts to discuss the top “50 Legal Tips in 50 Minutes.”  The panel will occur on March 28, 2017 from 4-5 pm, and will discuss the new Trump Administration, and what legislative and regulatory policies will change, what policies cannot change, what policies may change, and what to expect at the state law level.

All HR professionals in the hospitality industry will benefit from this conference, and as a friend of Conn Maciel Carey, you can register with a $100.00 discount off registration by clicking here.

We hope to see you in Vegas!

Andrew J. Sommer to Speak at IHRSA 2017 on Employment Law Issues for Health Clubs

IHRSA_2017_header_logoAndrew J. Sommer, Partner in Conn Maciel Carey LLP’s San Francisco office, will be presenting on March 9, 2017 in Los Angeles at the annual conference of the International Health, Racquet & Sportsclub Association (IHRSA), a trade association serving the global health club and fitness industry.  Mr. Sommer will speak on hot topics in employment law and practical compliance strategies for clubs.  For more information about IHRSA 2017, please click here.

Federal Appeals Court Concludes that Employer Violates Fair Credit Reporting Act by Including Liability Waiver in Mandated Disclosure

gavelEmployers procuring credit reports for applicants or current employees must navigate exacting disclosure and procedural requirements under the Fair Credit Reporting Act (FCRA).  In a question of first impression in the federal courts of appeal, the U.S. Court of Appeals for the Ninth Circuit recently ruled in Syed v. M-I, LLC that a prospective employer violated the FCRA when it obtained a job applicant’s consumer report after including a liability waiver in the required disclosure document.  The FCRA imposes procedures for procuring and using a “consumer report,” defined essentially as information procured by a consumer reporting agency bearing on an applicant’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living,” for establishing eligibility for employment.  These procedures include requiring that before obtaining the consumer report, the prospective employer disclose that it may obtain the applicant’s consumer report for employment purposes and provide the means for the applicant to withhold authorization.

Although the prospective employer in this case, M-I, provided the mandated disclosure, it incorporated into the same document an agreement that the applicant, Sarmad Syed, waive his right to sue M-I and its agents for violation of the FCRA.  Syed filed a class action lawsuit against M-I seeking statutory damages, punitive damages and attorney’s fees and costs.  Continue reading