Join us for a Briefing on the Impact of the Presidential Election on Employment Law and OSHA in 2017

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.

On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:

  • The effort to repeal the Affordable Care Act;
  • The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
  • The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
  • Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
  • OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.

Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660.  To register for this complimentary briefing, please contact info@connmaciel.com.

We hope to see you there!

Employment and OSHA in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

By Jordan B. Schwartz and Eric J. Conn

Gender Neutral Bathroom SignThe Department of Justice (“DOJ”) and the Occupational Safety and Health Administration (“OSHA”) have long enforced accessibility and sanitation standards for restrooms for workers and the public – an idea that generally makes sense viewed as a health and safety concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

Transgender Issues from an Employment Law Perspective

There are numerous employment law obligations for employers in the transgender area.  Title VII, for example, prohibits discrimination based on sex, which includes treating employees differently for failing to conform to sexual stereotypes.  The Attorney General has issued a memorandum expressing that Title VII specifically prohibits discrimination because Continue reading

As Retaliation Claims Rise, Employers Face New Challenges Under Employment, OSHA and Health Care Laws

Authored By:  Kara M. Maciel & Eric J. Conn

Whistleblower  As we discussed in a recent webinar, employers are facing an increased risk of defending a retaliation complaint as administrative policy changes and expansive federal laws make asserting these claims easier for employees.

Whistleblower and related-retaliation charges are on the rise throughout the country, and the Occupational Safety and Health Administration (OSHA), tasked with fielding complaints under 22 laws, is also becoming more aggressive. The Equal Employment Opportunity Commission (EEOC) enforces the anti-retaliation provisions of several laws, including Title VII and the ADA.  In addition, sweeping laws like the Affordable Care Act (ACA) are creating increased fodder for discrimination complaints.  Armed with increased financial resources, federal investigators now aim to be more receptive to complaints as part of what the EEOC and OSHA view as needed reforms of their whistleblower enforcement arm.

Claims on the Rise

Retaliation claims under Title VII have grown substantially over the years. More than a decade ago, these claims made up less than a quarter of all EEOC charges, but since then they have increased exponentially.  Now not only do they make up the most significant portion of claims, they are almost 50 percent of all claims brought.  OSH Act 11(c) claims have also been increasing, and are now about double the number from 10 years ago.  Despite the large number of 11(c) claims, however, about 72 percent of them are withdrawn or dismissed, and frequently are settled.  Less than 1 percent actually receive a merit determination from OSHA.

Procedurally, there are important timing differences between an EEOC charge and an 11(c) claim.  An EEOC charge must generally be filed Continue reading

Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

Workplace violence has become a serious issue for employers throughout the United States. In the wake of the shootings that occurred in San Bernardino, California and Hesston, Kansas, both of which occurred at the employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented.  Although these two incidents may not have been foreseeable or preventable, these incidents will nevertheless bring more attention to this issue.

Workplace violence can be categorized in three ways: 1) violence by an employee; 2) violence by a stranger; or 3) violence by a known third party. Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a government investigation.  In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of employees or third parties.  However, even if an employer evades civil liability, employers may still be subject to an investigation Continue reading

Workplace Violence: No Longer Just a Police Issue — Webinar Recording

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, HR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to develop a workplace violence prevention policy and training for employees to ensure they know what steps to take if an incident of workplace violence occurs.

Specific topics included:

  • OSHA’s enforcement philosophy about workplace violence and enforcement under the General Duty Clause;
  • When injuries that result from workplace violence must be reported to OSHA;
  • Reference checking, negligent hiring and supervision obligations to avoid liability to employees or third parties injured from workplace violence;
  • Employer obligations under the ADA, Title VII and state workers compensation laws; and
  • Recommendations for a compliant workplace violence prevention policy and employee training.

Here is a link to a recording of the webinar, which includes the full audio with slides.