This is the third and final blog post about what happened in 2015, and what I expect to happen in 2016. Looking forward, there are many variables, including the 2016 Presidential race, the unstable economy, world events and actions taken by the numerous state and federal agencies that impact employers. Please feel free to subscribe to AlabamaEmploymentLawBlog.com to keep up with current developments as we move forward in the new year.
OSHA. OSHA and the Mine Safety and Health Administration are working in conjunction with the Department of Labor and the Department of Justice to more aggressively pursue criminal prosecutions of alleged violations involving worker safety. Pursuant to a Memorandum of Understanding executed by the DOJ and DOL, the proposed plan of action is to transfer these prosecutions from the DOJ's Criminal Division's Fraud Section to the Environment and Natural Resources Division which may also result in increased criminal prosecutions of environmental cases. Fines may also be increased. Individuals may be prosecuted for alleged worker safety violations, as well as environmental violations. Dr. David Michaels, OSHA's Assistant Secretary, said: “More frequent and effective prosecutions of these crimes will send a strong message to those employers who fail to provide a safe workplace for their employees. We look forward to working with the Environmental and Natural Resources Division to enforce these life-saving rules when employers violate workplace safety, workers' health and environmental regulations.”
In a recent Eleventh Circuit decision released earlier this month, Quinlan Enterprises v. DOL, the court found that an employer can be liable for OSHA violations when a supervisor was working alongside an employee and neither was using fall protection. Since the supervisor saw the employee working in violation of safety rules and did nothing to remedy the violation, Quinlan was on notice of the violation, even though the supervisor was also in violation. I cannot say it enough: employers need to train, train, train and educate, educate and educate their supervisors on policies and procedures, including safety issues which would be subject to OSHA's jurisdiction. Failure to do so can result in injuries/death of employees, OSHA investigations and fines, lawsuits and negative publicity for the employer.
In November, 2015, President Obama signed into law the Bipartisan Budget Act of 2015. Included in the act is Section 701, which requires OSHA to increase the amount of civil penalties. This is the first increase since 1990. The effective date is August 1, 2016. Employers can expect the ceiling for a serious or other than serious citation to increase from $7,000 to approximately $12,000, willful or repeat citations could increase by nearly $60,000, from $72,000 to an expected $127,000.
Federal Contractors. President Obama signed an Executive Order on September 7, 2015, with an effective date of January 1, 2017, requiring federal contractors to pay employees for sick leave, at the rate of one hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick leave. As we get closer to 2017, employers who are federal contractors should review their policies and procedures to ensure compliance with this Executive Order. Although Alabama has not done so, a number of states and cities have enacted similar paid sick leave laws. I expect more cities and states will be considering paid sick leave laws in 2016.
Effective January 1, 2016, the minimum hourly wage for workers of federal contractors goes up $.05 an hour, from $10.10 an hour to $10.15 an hour. The minimum wage for tipped employees working in connection with covered federal contracts and subcontractors increases from $4.90 an hour to $5.85 an hour.
Effective January 11, 2016, applicants or employees of covered federal contractors and subcontractors cannot be terminated or discriminated against for discussing their pay or the pay of co-workers. Also, contractors are required to include the Pay Transparency Policy Statement in their employee handbooks and provide the statement to applicants and employees.
Fair Credit Reporting Act. 2015 saw a major increase of lawsuits filed under the FCRA. The Supreme Court heard oral argument late last year in a FCRA case involving Spokeo, which was sued by Thomas Robins, in a class action, claiming that although he suffered no actual harm from an alleged violation of the FCRA, he was entitled to sue for damages. Should the Supreme Court agree with Mr. Robins, employers who conduct background checks and allegedly violate the FCRA may be subject to individual and/or class action lawsuits even if there is no actual damage. Employers should take steps to make sure they (or a third party who does the background check) are in compliance with the FCRA.
Additionally, there have been numerous lawsuits filed alleging hyper-technical violations of the FCRA's “standalone disclosure requirement”. There are a number of lawsuits against Big Lots around the country, including Pennsylvania and Illinois, concerning the “standalone disclosure requirement”. If employers are requiring prospective employees to execute a FCRA form to conduct a background check, compliance with the FCRA is essential.
Unions. With the recent victory in Tennessee at the VW plant, unions will continue to push their agenda in the automotive industry, as well as in other sectors. Employers need to be aware of the many complex issues involving union organizing campaigns in Alabama and around the country. Failure to do so may not only result in a union successfully winning the election, but may also lead to charges of unfair labor practices. Recently, the NLRB found that Lear Corp, a supplier to Hyundai, “improperly interrogated employees about their union sympathies”. The Board found that management threatened that a successful union campaign would result in customers no longer doing business with them and that they would close the plant.
Miscellaneous issues. There are numerous other issues that will have an impact on employers in 2016. These include:
- Politics. With a presidential election in November, and a lame duck president, not much will happen in Congress based on past results. However, with a pen and a phone, President Obama will continue to push his agenda. During his recent State of the Union address, he noted that: “And I'll keep pushing for progress on the work that still needs doing. Fixing a broken immigration system. Protecting our kids from gun violence. Equal pay for equal work, paid leave, raising the minimum wage. All these things still matter to hardworking families; they are still the right thing to do; and I will not let up until they get done.”
- Individual Liability. I have previously blogged about individual liability for violations of the FLSA. For those who thought it couldn't happen in Alabama, on January 12, 2016, the DOL filed a lawsuit in Federal Court against BKJ Investments, LLC. d/b/a Café 123 and John Robert Wood in his individual capacity as owner of the restaurant alleging violations of the FLSA by not paying minimum wages to some of the staff. As mentioned above concerning OSHA's Memorandum of Understanding with the DOJ, I expect that more lawsuits will be filed against individuals concerning OSHA violations as well. Various regulatory agencies, such as the EEOC, DOL and OSHA have apparently made the decision to pursue individuals, when legally permissible, on a more frequent basis.
- Ban-the-box legislation. Many employers have job applications that ask about prior criminal convictions. Numerous states (at least 19, including Georgia) have passed legislation banning questions about criminal arrests or convictions for public and/or private employers. Alabama has not yet passed such a statute, but employers who are engaged in business in multiple states need to be aware of this prohibition.
- Immigration and I-9 audits. The U.S. Immigration and Customs Enforcement (ICE) and the Office of Special counsel for Immigration-Related Unfair Employment Practices issued guidance for employers who conduct internal I-9 audits. With the current emphasis on immigration issues, and potential civil and criminal penalties for violating various laws concerning immigration, employers should ensure that an I-9 form is properly completed for all employees with the proper documentation. Employers need to be cautious and follow the guidance if they attempt to get a new I-9 form completed by an existing employee.
- Employee Handbook. Once again, now is a great time to review the Employee Handbook and update as necessary. Schedule training as necessary, both to review any new policies as well as to review existing policies.
In 2016, I anticipate federal agencies to continue to push President Obama's agenda as he finishes his second term. The Republican controlled Congress will fight back as best it can with their agenda. The courts will continue to have to sort out the conflicts, which may take years. 2016 will be a volatile year for Employers, with the potential for numerous changes in the law and regulations.