05/02/2013 - OSHA Wants to Know: Are You Keeping Your Temporary Workers Safe?
If your company utilizes temporary workers supplied by a staffing agency, you may be a target of OSHA. On April 29, 2013, the Deputy Assistant Secretary of OSHA, Richard Fairfax, issued a memorandum to its Regional Administrators, entitled “Protecting the Safety and Health of Temporary Workers.”

04/29/2013 - Lessons Learned from Otis Elevator When Contesting OSHA Citations: Avoid Hypotheticals When Asserting the Infeasibility Defense
On April 8, 2013, the Occupational Safety and Health Review Commission (“OSHRC” or the “Review Commission”) reversed an administrative law judge’s (“ALJ’s”) decision vacating a lockout/tagout (“LOTO”) citation issued to Otis Elevator Company (“Otis”).

03/19/2013 - Oil Field Health and Safety Issues: Common Problems and Innovative Solutions
A roundtable discussion regarding common health and safety problems in the oil field and approaches companies are taking to address them.

10/10/2012 - OSHA in an Election year: Enforcement, Enforcement, Enforcement
This article briefly addresses OSHA coverage and basic regulatory requirements placed on employers before reviewing OSHA’s current enforcement and regulatory initiatives.

09/19/2012 - Clean Up on Aisle 7: Costco’s Electronic Posting Policy Chills Protected Activity
As we have explored through previous posts, the general counsel of the National Labor Relations Board, Lafe Solomon, has issued previous reports with guidance on what employers should not include in social media policies.

05/16/2012 - In re Penthouse Executive Club: Can you Strip Away the Confidentiality of Litigation-Related Communications by Posting Them on Facebook?
If you are a plaintiff in a lawsuit, can you discuss the lawsuit with other plaintiffs on Facebook and keep these communications confidential? 

05/09/2012 - Unfashionable Firings: Judge Orders Clothing Store to Rehire Employees Who Lost Their Jobs Based on Facebook Posts.
Can you fire an employee who post on Facebook: “Hey dudes, it’s totally cool, tomorrow, I’m bringing aCaliforniaworkers rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation?” 

04/27/2012 - Think Globally, Act Locally (in Your Workplace): Changes to OSHA’s Hazard Communication Standard
The Occupational Safety and Health Administration (“OSHA”) recently released a final rule that aligns its hazard communication standard (29 C.F.R. § 1910.1200) with the United Nations’ Globally Harmonized System for Classification and Labelling of Chemicals (“GHS”).

04/26/2012 - More Than Words of Disparagement: Does an Anti-Union Post Have to be Extreme to Go too Far?
In the union context, a significant degree of “vituperative speech” is allowed in the “heat of labor relations.” 

04/23/2012 - Social Media Background Checks
You may recall our post a few weeks ago regarding the dangers in using social media to screen potential applicants for employment.

03/01/2012 - OSHA in an Election Year: Enforcement, Enforcement, Enforcement
This year promises to bring even more headlines than 2011 regarding workplace safety and the agency empowered to regulate it - OSHA. Given the increased scrutiny that regulators feel with election-year politics, the agency will have to pick its battles carefully when pursuing changes through new or updated regulations.

02/11/2012 - Make your Social Media Policy Stick
When it comes to monitoring employee social media use and, in turn, compliance with your policies, companies are generally governed by the Electronic Communications Privacy Act (ECPA), passed in 1986.

02/08/2012 - PR News "PR Insiders" Guest Column: How to Make Your Social Media Policy Stick
Your company is among the growing number that has embraced social media and outlined benefits for its use in the workplace. Better yet, it has taken the next step and has developed a social media policy.

01/24/2012 - Franchising.com Guest Article: On The Lookout - OSHA Inspectors Are Targeting More Small Businesses
For months, Republicans in Washington have been beating a steady drumbeat about the harm regulations have on businesses, the economy, and job creation.

12/16/2011 - PR News "PR Insiders" Column: Social Media Policy a Must-Have in 2012
Employers across the country are learning that it is no longer feasible to ignore social media.

11/10/2011 - PR News "PR Insiders" Column: Blocking Employee Use of Social Media? It's Time to Rethink Why
Today’s explosion of social media in many ways mirrors the disruptive impact of the Internet itself back in the 1990s.

09/23/2011 - The New Workplace Violence Cops: "Whatcha Gonna Do When OSHA Comes For You?
As a result of OSHA’s recently issued directive on workplace violence, the cops may not be alone in investigating incidents of workplace violence. OSHA is now in the business of policing workplace violence.

09/07/2011 - NLRB Social Media Status Update: Is the Board Sending Employers a Friend Request?
Since the famous “Facebook firing” complaint in late 2010, many observers have worried that the majority-Democrat National Labor Relations Board’s (“NLRB” or the “Board”) social media focus was an attempt to establish pro-union, anti-employer precedent, giving employees free rein to disparage and criticize their employers online.

09/01/2011 - Dude, Where's My Disclosure? Don't Get Punk'd by FTC Regulation of Employee Social Media Use
As Ashton Kutcher has learned, the Federal Trade Commission takes online endorsements seriously. Recently, the actor and avid Twitterer edited an online issue of Details magazine that plugged several technology start-ups without clarifying that Kutcher had invested in many of them.

08/02/2011 - OSHA Warns Employers of More Aggressive Enforcement
Supporting OSHA’s aggressive semi-annual regulatory agenda, Deputy Assistant Secretary of Labor for OSHA, Jordan Barab, recently warned a research symposium that, “despite what goes on in Congress, [OSHA] [has] absolutely no intention of pulling back or retreating.” Barab alerted attendees that OSHA’s regulatory agenda aims to extend enforcement beyond traditional manufacturing and construction sectors.

05/11/2011 - OSHA's Catchphrase: General Duty
What if Title VII had a provision that mandated, “in addition to specific protected traits (sex, race, religion, etc.), all employers have an obligation to protect employees from discriminatory conduct based on other recognized traits (smoker, obesity, red hair, etc).” 

04/18/2011 - Fifth Circuit Rules Harassment Claims Not Viable Under USERRA
On March 22, 2011, the Fifth Circuit ruled that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) does not support a cause of action for hostile work environment. This is the first ruling from any Circuit Court regarding the issue.

03/09/2011 - Employers’ Cat’s Paw Liability: Watch Out for the Monkey Business of Supervisors
In a case decided last week, Staub v. Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.

02/22/2011 - OSHA 2010 and 2011: A Review of OSHA’s Expanded Enforcement Initiatives in 2010 and the Outlook for 2011
The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance.

02/17/2011 - OSHA Administrative Penalty Information Bulletin
OSHA is implementing several changes to its administrative penalty calculation system.

02/03/2011 - Have You Checked The Records? OSHA Continues to Emphasize Recordkeeping Compliance in 2011
After launching a National Emphasis Program (“NEP”) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance when conducting workplace inspections.

01/31/2011 - FLSA Year in Review 2010: Death Star Workers Were Independent Contractors; Other Cases Also Side With Empire
FLSA year in review, a look ahead: Expect the DOL to continue its aggressive enforcement of the wage and hour laws which, of course, will likely lead to more litigation over alleged wage and hour violations.

01/14/2011 - Haynes and Boone: Continuing to Set Pro-Employer Precedent in Sexual Harassment Law
The Equal Employment Opportunity Commission received more than 12,000 charges in 2009 from employees claiming sexual harassment—a 6 percent increase from three years ago. Although harassment claims are on the rise, Haynes and Boone continues to secure significant sexual harassment victories for its clients, and employers overall.

10/15/2010 - Veterans’ Benefits Act of 2010 - Expanding Employee Protection Under USERRA
Before heading into the pre-election recess, the Senate passed the Veterans’ Benefits Act of 2010 on September 28, 2010. See H.R. 3219, 111th Cong. (2d Sess. 2010). The Act, which passed in the House over one year ago, is a compromise measure between the House and the Senate and encompasses several veterans’ benefits bills. Of notable importance to employers is the Act’s expansion of employee protection under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

08/03/2010 - Overview of Proposed Changes to the OSHA Act Under the Miner Safety and Health Act of 2010
Haynes and Boone has prepared an overview of provisions under the Miner Safety and Health Act of 2010 pending in the House, which would amend the OSHA Act.

08/03/2010 - OSHA is “Back in the Enforcement Business.” Are You Prepared?
In 2010, current OSHA enforcement statistics confirm this promise and reveal unprecedented levels of enforcement. The agency is also paving the way to bolster its capabilities through new proposed regulations.

07/29/2010 - Litigating Arbitration Agreements: Recent United States Supreme Court Decisions Provide Guidance to Employers Looking to Avoid Court
Despite entering into arbitration agreements with their employees, employers all too often find themselves in court adverse to the very employees who have signed an arbitration agreement. The U.S. Supreme Court recently issued three arbitration decisions that have important implications for employers seeking to avoid the inside of a courtroom.

06/30/2010 - U.S. Supreme Court Upholds Employer Searches and Underscores Importance of Electronic Communications Policies
The United States Supreme Court issued a unanimous decision that provides guidance on steps employers can take to reduce an employee’s privacy expectations and emphasizes the importance of having a clear, well-defined privacy policy.

05/10/2010 - Plan, Prevent, Protect or Pay? What Employers Should Expect From OSHA Under Its New Enforcement Strategies and Semiannual Regulatory Agenda
Rolling out OSHA’s semiannual regulatory agenda on April 26, 2010, Secretary of Labor Hilda Solis unveiled several action items being marketed as the “Plan, Prevent, and Protect” enforcement strategy.

04/22/2010 - Employers Beware: How the Recent Health Care Reform Legislation Affects Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), which President Obama signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years. 

10/09/2009 - Recent Case Dismissal Challenges "Geographic Presumption"
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” 

08/12/2009 - FMLA and Equitable Estoppel
Since its passage in 1993, employers have diligently attempted to incorporate the Family and Medical Leave Act's regulatory scheme into the workplace compliance regimen, only to be tripped up on some final and technical requirement that lands them in the courthouse.
Reprinted by permission from Law360.

06/19/2009 - U.S. Supreme Court Increases Employee Burden of Proof in Age Bias Cases
In Gross v. FBL Financial Services, Inc., decided on June 18, 2009, a deeply divided U.S. Supreme Court imposed a heightened proof burden on employees to establish age discrimination against their employers. In a 5-4 decision, the Court concluded that the literal text of the Age Discrimination in Employment Act (“ADEA”) does not allow a worker to prove discrimination by demonstrating that age was one “motivating factor” for the employer's adverse employment action.

05/27/2009 - Texas Lawyer Commentary: Matthew Deffebach and Janet Ayyad Discuss Bill Precluding Gun Bans in Workplaces
As of Dec, 31, 2008, the number of individuals with active licenses to carry a concealed handgun in Texas totaled 314,574, according to the Texas Department of Public Safety's Web site. That does not include the people allowed to carry a rifle or shotgun, for which Texas does not require a license.

Why is 314,574 a significant number? It could also be the number of handguns stored on company parking lots across Texas, if the state Legislature passes the proposed guns-at-work law. With the thorny issues surrounding firearms, supporters and opponents of the proposed law could bill the legislation as one of two extremes, borrowing from modern cinema: "The Peacemaker" or "There Will Be Blood."

05/06/2009 - Restructuring Compensation During Economic Challenges
Employers are facing a number of economic and financial challenges. Some employers have considered restructuring their compensation arrangements with employees as an alternative to avoid a reduction in force or layoffs. Restructuring of compensation packages raises a number of issues. 

05/01/2009 - What’s an Employer to Do? Understanding the Employment Law Implications of Swine Flu
Employers face an array of potential legal issues associated with the influenza A (H1N1) infection, also known as “swine flu.” As of May 1, 2009, 331 cases of swine flu in eleven countries have been reported and 109 of these cases are in the United States. Moreover, the World Health Organization has rated the swine flu as a phase 5 on the influenza pandemic alert level – revealing “a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short.” Health organizations and the government are not the only entities that need to prepare plans. Employers also need to determine how they will deal with the problems associated with a potential influenza outbreak.

04/22/2009 - Texas Supreme Court Provides Greater Protection to Employers Seeking to Enforce Non-Compete Covenants
Building on its 2006 decision in Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court has further expanded the enforceability of non-compete covenants in the at-will employment setting. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, No. 07-0490 (Tex. April 17, 2009), a decision with significant practical implications for Texas employers, the court held that an employer’s implied promise to provide confidential information to an at-will employee may give rise to an enforceable covenant not to compete.

02/16/2009 - U.S. Supreme Court Protects Workers from Retaliation in Workplace Discrimination Investigations
On January 26, 2009, the United States Supreme Court, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that Title VII’s anti-retaliation provision protects an employee-witness who “speaks out” about alleged discrimination “not on the employee’s own initiative,” but in answering questions during the employer’s internal investigation.

02/05/2009 - President Obama Signs Three Executive Orders Concerning Unions
On Friday, January 30, 2009, in a move targeting Bush-era policies that some viewed as unfriendly to organized labor, President Barack Obama signed three executive orders: Notification of Employee Rights Under Federal Labor Laws; Nondisplacement of Qualified Workers Under Service Contracts; and Economy in Government Contracting. Regarding these orders, President Obama commented, “We need to level the playing field for workers and the unions that represent their interests. . .”

01/30/2009 - President Obama Signs Lilly Ledbetter Fair Pay Act
On Thursday, January 29, 2009, in a widely anticipated move, President Barack Obama signed his first bill into law, approving the Lilly Ledbetter Fair Pay Act. This legislation focuses on salary bias in the workplace. Discussed in greater detail below, the Ledbetter bill essentially negates a 2007 United States Supreme Court decision that limited a woman’s ability to sue for pay discrimination long after the first discriminatory paycheck occurred.

01/20/2009 - House Passes Two “Fair Pay” Bills
On January 9, 2009, the United States House of Representatives passed the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The bills now go to the Senate for consideration, and President Obama is expected to sign both into law should they reach his desk.

11/21/2008 - The ADA’s Rebirth: Complying with the ADA Amendments of 2008
Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.

07/03/2007 - Significant Developments at OSHA as it Steps Up Compliance Efforts

"Second-Hand" Harassment: Can an Employer Get Burned?

Discipline and Discharge: Avoid 'Nearly Identical Employee' Issue

May 1, 2002: OSHA Begins Penalizing Employers For Improper Recordkeeping

02/01/2002 - Supreme Court Applies OSHA Regulations to Uninspected Vessels