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January 2017 Update - The Forecast of the DOL, OSHA, USCIS and Missouri

Posted By Governmental Affairs Committee, Tuesday, January 3, 2017
Updated: Sunday, January 1, 2017

2017 promises to be an interesting, plus challenging, time to be a Human Resources professional, with many workforce changes expected.  With Republicans controlling the White House and both houses of Congress, we can anticipate to see activity on reform of the tax code, repeal of or revisions to the ACA, stepped-up work site enforcement on employment verification, and additional restrictions on the employment-based visa process.  

USCIS

On November 14th, the U.S. Citizenship and Immigration Services published a revised version of the Form I-9, Employment Eligibility Verification, which has been coined the “smart I-9”.  By January 22, 2017, employers must use only the new version.  Until then, we can continue to use the version dated 3/8/2013 or the new version. 

Among the changes in the new version, Section 1 asks for “other last names use” rather than “other names used,” and streamlines certification for certain foreign nationals.  Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form and include specific instructions for completing each field.  The revised Form I-9 is also easier to complete on a computer.  Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over.  When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers. 

 

OSHA

Judge Sam A. Lindsey, United States District Court, denied a request for injunction against OSHA’s new post-injury reporting rule.  This development provides many answers to questions about the implementation of OSHA’s new rule. 

What It Means

The decision to not grant an injunction means that OSHA’s new reporting rule went into effect December 1, 2016.  This new rule contains provisions meant to discourage employers from using retaliatory measures that would discourage injury reporting.  This means that it is an OSHA covered employers’ best interest to review their post-accident/post-injury workplace policies to ensure they are compliant with the new rule.  OSHA’s October 19, 2016, memo is so far the best employers have to go on for now.  Employers must have a reasonable basis for conducting post-injury drug testing.  Factors to consider to determine a reasonable basis include: 

  • Whether the drug test results can provide insight into why the injury or illness occurred. 
  • Whether other employees involved in the accident or injury were also tested.
  • Whether the employer has a heightened interest in determining drug use due to the safety-sensitive nature of the workplace or job. 

What It Does Not Mean

The decision to deny an injunction does not mean that the case against OSHA’s new reporting rule is over.  To the contrary, this means that the judge must make a final decision at a later date.  Also, this decision does not mean that employers may not conduct post-injury drug testing.  It does not change the actual OSHA rule, which does not actually ban post-injury drug testing.  Additionally, adherence to state Drug Free Workplace and state worker’s compensation laws will not change and OSHA will not find a violation of 1904.35 (b)(1)(iv) when post-accident testing is performed in compliance with these laws.       

What types of modification may be required as of December 1, 2016?  Review the questions below.

  • My policy requires automatic blanket testing of anyone involved in an accident?  Yes/No
  • My policy uses post-accident triggers such as a dollar amount of damage?  Yes/No
  • My policy requires drug testing after any workplace accident, no matter the scale?  Yes/No

If you answered yes to any of the items above, then your policy leaves you open to a high risk of OSHA citation.  Changing the definitions, criteria and decision making process may be required to ensure compliance.  There are exceptions of course.  Employers that are complying with state or federal drug testing requirements are not affected. 

Here’s another question checklist

  • My policy has been reviewed recently for OSHA compliance issues?  Yes/No
  • My policy limits post-accident testing to situations and individuals where there is reasonable cause to believe impairment played a role?  Yes/No
  • My supervisors and managers are trained to recognize signs of substance abuse and document them for reasonable suspicion purposes?  Yes/No

If you answered yes to any of these questions, then you are doing well. 

Recommendations

·         Review your policy.  Post-accident policies should be reviewed and updated to ensure the language cannot be construed as “blanket” and therefore be presumed to be retaliatory and deter or discourage reporting. 

·         Use a decision tree for performing post-accident/incident drug testing and document, document, document. 

·         Consider training on post-accident “reasonable suspicion/basis” for your supervisors and managers, and review your reporting procedures to streamline the process, making reporting easier for employees. 

·         Consider lab based oral fluid drug testing to show closer link to recent use. 

While we will need to wait and see how this plays out after December 1, 2016, by avoiding a few pitfalls and following a few best practices now, employers can proceed with relative confidence. 

Workplace Violence

Homicide is the number one cause of death for women in the workplace, and the third overall cause for men and women.  In times of economic uncertainty and political unrest, we see violence in the workplace become a tragic becoming a trend.  Whether it is inspired by stress or criminal motives, violence can be waged by employees, former employees, customers, patients or disturbed outsiders.

Under OSHA’s General Duty Clause, an employer is required to protect its employees against “recognized hazards likely to cause serious injuries or death.”  As such, every employer should develop a workplace violence prevention and response policy.  While no workplace is immune, every workplace should be prepared.  If interested, BLR (Business and Legal Resources) is conducting a 2017 Workplace Violence Prevention Symposium March 2-3 in Orlando.  You can go to www.blr.com to find out more information.        

 

DOL

Any movement on the Department of Labor overtime rule is unlikely before President-elect Trump takes office.  The DOL has requested that an appeals court fast-track its appeal of the injunction blocking the new overtime regulations.  But even if the court agrees to DOL’s proposed expedited schedule, it wouldn’t take any action on the injunction until at least February, weeks after Trump takes office. 

The department filed an appeal with the 5th U.S. Circuit Court of Appeals December 1.  It argued that a federal district court judge’s injunction halting the rule “rests on an error of law and should be reversed.”  The judge called into question DOL’s authority to establish a salary-basis test for overtime eligibility under the Fair Labor Standards Act (FLSA).  DOL, in its appeal, argued that the 5th Circuit has already sanctioned the test in previous opinions.

In addition to asking the appeals court to review the injunction, DOL filed a motion for expedited briefing and oral argument.  “Expedition is clearly warranted in this case,” it said, asked the court to rule on it by December 8.  If it grants the request for a quick review, DOL has proposed a schedule that would have briefing completed on February 7, 2017.  This means that even if the court grants DOL’s motion, it likely wouldn’t reach a decision on the injunction until weeks after Trump has taken office.  “By then, Trump’s DOL may have already dropped the appeal,” said Jonathan Segal, a partner and managing principal at Duane Morris LLP.  “I don’t see this rule going forward under a Trump DOL,” he said, calling the appeal a “Hail Mary pass.”    Or, if the new DOL doesn’t drop the appeal, the 5th Circuit may well uphold the lower court’s order; it tends to give less deference to agency actions and executive orders, Segal noted.  “It’s not an accident that the suits were filed in that circuit,” he said.  And if the 5th Circuit didn’t uphold the lower court’s injunction – which Segal says is unlikely – Congress could potentially invalidate the rule with a bill that Trump might then sign into law.   

It’s also important to note that the district court still has jurisdiction and could make the injunction permanent.  However, that’s another unlikely scenario, according to Segal. “Instead, it probably will afford deference to the 5th Circuit,” he said. 

MISSOURI

The Missouri’s legal climate is one of its business community’s deepest concerns.  According to a Missouri Chamber-commissioned Gallup survey of more than 1,000 Missouri CEOs and business owners, less than one in four Missouri employers are satisfied with the state’s litigation climate.  St. Louis is the nation’s most unfair civil court jurisdiction according to the American Tort Reform Association’s 2016-2017 Judicial H**lholes report released on December 22, 2016.  The Circuit Court for the City of St. Louis has become a magnet for product liability lawsuits and consumer class action lawsuits, fueled by Missouri courts’ lax standards and bias against employers, according to the report.  “The overwhelming majority of plaintiffs filing these suits are not from St. Louis, or even from Missouri,” said Tiger Joyce, president of the American Tort Reform Association.  “They travel from across the country to exploit a weak venue law as their lawyers spend heavily on television advertising that works to prejudice potential jurors against defendants.”

According to Dan Mehan, Missouri Chamber president and CEO, “The reforms Gov. Nixon vetoed are not outlandish ideas.  They are common-sense reforms, often aligning with federal standards and the standards held by the majority of other states.  We are trying to balance the scales of justice, nothing more.  Right now the courts are skewed against employers and that fact is getting national attention.”  Governor-elect Eric Greitens lists tort reform among his priorities. 

The Missouri Chamber calls for an array of civil justice reforms to:

  • Align Missouri discrimination standards with federal law.
  • Curb frequency of outlandish punitive judgments.
  • Limit ability of trial lawyers to forum shop cases into improper, plaintiff-friendly courts.
  • Eliminate the joint and several liability standards, which incent trial lawyers to drag businesses into costly lawsuits.
  • Ensure that only qualified, reliable experts are allowed to testify as expert witnesses in cases.
  • Reform Missouri’s collateral source standard to allow juries the full scope of information in determining an injured worker’s award. 
  • Reduce frivolous lawsuits by strengthening the often-abused Missouri Merchandising Practices Act.

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