Highlights of Recent Federal Developments Related to Labor and Workplace Issues

The following are recent notes on federal developments related to labor and workplace issues provided in cooperation with our national allies at NAM.  For more information, contact us at info@aivt.org

EEOC Releases Preliminary FY 2018 Sexual Harassment Data

The EEOC recently announced preliminary data for Fiscal Year 2018 regarding sexual harassment. The report notes that over the course of FY 2018, the EEOC filed 50 percent more general harassment suits than FY 2017 (this number is not just limited to sexual harassment). Further, there was a 12 percent increase in charges filed alleging sexual harassment from FY 2017 to FY 2018. This appears to be attributable in part to increased attention and awareness of the EEOC in light of the #metoo movement.

DOL-OIG Report on Fatality and Severe Injury Reporting

The US DOL’s Office of Inspector General recently released a report calling for OSHA to make improvements to its guidance on fatality and severe injury reporting. The report was produced because of concerns by the former OSHA Assistant Secretary that more than 50 percent of severe injuries went unreported. The DOL-OIG found that a lack of guidance and training on how to detect and prevent underreporting and inconsistent issuance of citations for late reporting are contributing factors. As such, the OIG recommends that OSHA “(1) develop guidance and train staff on identifying underreporting, (2) issue citations for late reporters, (3) clarify guidance, and (4) conduct inspections on all Category 1 incidents.” OSHA has the option to implement these suggestions, but is under no obligation to do so.

Employers Might be Liable for Weak Responses to Harassment Claims

The 7th U.S. Circuit Court of Appeals recently upheld a ruling for a former Costco employee in a hostile work environment case. This case (EEOC v. Costco Wholesale Corporation) is important because an employer may now be found liable for their response to an employee’s complaint about customers’ inappropriate behavior (similar to employers’ liability for the action of managers and other employees) and may need to take action even when it does not clearly violate their workplace policy. In light of this decision, it is important to check your workplace sexual harassment policies to ensure they are up-to-date and adequately address the issues that could arise in your workplace.

Joint Employer Rulemaking

The National Labor Relations Board recently released a proposed rulemaking that is intended to create a more reliable and workable “joint employer” standard (i.e., the legal test for determining if more than one entity is the individual’s “employer” and thus liable for labor law violations). This represents a major departure from the NLRB’s Browning-Ferris Industries (BFI) decision in 2015, which created significant uncertainty in the manufacturing workplace. The BFI decision brought into question many of the contractor-subcontractor relationships that manufacturers rely on.

Under the Board’s proposal, a joint employer relationship would only be found where employers “possess and actually exercise substantial direct and immediate control” over employees’ conditions of employment like hiring, firing, discipline, and supervision.

DOL Opinion Letter on Whether Wellness Programs Constitute Compensable Time

On August 28, US DOL’s Wage & Hour Division (WDH) published an opinion letter stating that an employee’s participation in purely voluntary wellness activities does not constitute compensable time under the FLSA. As more employers offer wellness programs and incentives to employees, it is important to consider whether the time may be compensable. Here, the wellness activities did not constitute compensable time because the events were purely voluntary, none of the activities related to an employee’s orientation or job duties, and the employer did not derive a financial benefit from the employee’s participation. For more information, click here.

 Opinion Letters on FMLA Leave

On August 28, US DOL’s Wage & Hour Division (WDH) published an opinion letter regarding no-fault attendance policies and the FMLA. According to the letter, no-fault attendance policies do not violate the FMLA, so long as they are not applied in a discriminatory manner. To read the letter, click here. The same day, WHD also published a second opinion letter stating that in certain circumstances, organ-donation can qualify as a “serious health condition” under the FMLA. To read this letter, click here.