Last week, OSHA issued a final rule regarding the reporting of workplace hazards. Many employers are already required to keep records of injuries and illnesses. At this time though, little of this information about individual employers is made public. Under the new rule, employers in high-hazard industries that are already collecting data will send it to OSHA for posting on OSHA’s website. OSHA states that the availability of this data will enable employees to choose workplaces where injury risk is lowest, and employers that wish to hire the best workers will make prevention a priority.
Under the rule, employers with 250 or more employees in industries covered by the Recording and Reporting Occupational Injuries and Illnesses regulation must electronically submit information. Employers with 20-249 employees in certain industries must electronically submit more-limited information as well.
New requirements take effect August 10, 2016, with submissions to OSHA beginning in 2017. The obligations to complete and retain injury and illness records under the recordkeeping regulation remain unchanged.
According to the Bureau of Labor Statistics, over three million workers suffer a workplace injury or illness annually. Assistant Secretary Michaels states, “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace. Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”
I recently came across a post that I failed to publish many months ago. The news story is a dated now, but the point remains the same:
I talk with clients about looking at what they do and how they do it, not just what they say. You never want an employment or compliance policy accompanied by a “wink-and-nod.” Consistency is important, just like in parenting because it is not enough to say, “I really mean it.”
There was a recent story that displays that point. You may have seen it: The Houston Astros had a “Ladies’ Night” fan promotion with a Baseball 101 talk, “Diamonds and Bling” music, and the chance for makeovers as a part of coming to a game. There was an outcry over the condescending way the event was promoted. Here’s one account: http://msn.foxsports.com/mlb/story/houston-astros-botch-ladies-night-offend-women-daily-buzz-092513.
Here is the part that struck me, and it’s not unique to a single site that carried the story: Along with the story about how the event was offensive to women, several of the sites had even more questionable content in and around the article and in advertising bars. Just for instance, in the column next the the story above, there was a photo for “Fox Sports Girl of the Week: Kendall” and embedded within the text of the story is “WHO SETS THE CURVE? Check out the FOXiest fans from stadiums across the country and tweet us your photo.” Bravo. What kind of message did all of the verbiage (and images) around that story send? Don’t get me wrong; I know there are other issues at play–readership, advertising dollars, etc. Nothing is simple.
But next time you roll out a new policy, have staff training, or educate on an HR issue, make sure to consider the other messages you are sending in the context of your presentation. It may be that the message is lost in the noise of how it is packaged, who is presenting, or the way you operate.
The Wage and Hour Division of the Department of Labor provided recent guidance for determining worker classification. The WHD says a business “‘suffers or permits’ an individual to work if, as a matter of economic reality, the individual is dependent on the entity.” The economic reality test factors are:
(a) the extent to which the work performed is integral to the employer’s business;
(b) the worker’s opportunity for profit or loss depending on managerial skill;
(c) the extent of the relative investments of the employer and the worker;
(d) whether the work performed requires special skills and initiative;
(e) the permanency of the relationship; and
Businesses are to analyze these factors in conjunction with each other, and no factor is given more weight than another. In particular, the “control” factor should not be given more weight. If you have questions or want to discuss how the relationships with your workers are structured, give us a call at Wilson Worley, PC.
The Wage and Hour Division of the Department of Labor issued an Administrator’s Interpretation on July 15, 2015. The Interpretation discusses the classification of independent contractors and employees. An Interpretation does not have the force of a regulation that has been subject to the procedures of notice and comment. However, the Interpretation is indicative of the stance that the DOL will likely take regarding employee and independent contractor classification. The Interpretation’s actual authority and ability to impact the classification of employees and independent contractors in litigation will be a source of future debate. It is an indication that misclassification continues to be a hot button topic for businesses paying workers.
Gender identity issues continue to be a hot topic in the media, and by extension in the workplace. This month OSHA has published a Best Practices memo providing suggested guidelines for restroom access for transgender workers. The memo is available on the OSHA website or by clicking OSHA Best Practices, Restroom Access.
Classification of workers has long caused confusion and been an area of concern for businesses. Because independent contractors work for themselves, they are not covered by tax and employment laws in their work for businesses. Because of the costs associated with employees and the labor and other legal requirements, employers are often tempted to label as many workers independent contractors as possible. Even consent by the worker or a written contract calling someone a contractor is not enough; instead, the law determines who is an employee.
It is a good idea to review job responsibilities and control exerted over your workers from time to time to ensure compliance. Worker misclassification is an area of emphasis at this time for many state and federal enforcement agencies. Much better to review your own workers than to have the IRS do it for you after you have issued 1099s for several years.
Specifically, descriptions are important under the ADA as well. They provide a framework to review whether an applicant with a disability is otherwise qualified to perform the job. They, then, allow the employer to consider what accommodations would be necessary for the applicant to handle the essential functions of the job. That, in turn, leads to clarity on whether accommodation would be reasonable.
The ADA has no express requirement to adopt job descriptions; however, the law requires that applicants and employees be capable of performing the essential functions of the position, with or without reasonable accommodation. When defining essential job functions, the EEOC reviews job descriptions written before an employer advertises a job opening. Thus, employers should be accurate in reflecting those essential functions, and generic wording does not provide sufficient detail when questions arise. Describing the specific tasks that a position requires allows for compliance with ADA and EEOC guidelines and a basis to defend your actions if you are questioned.