MAY 2017
OSHA Announces its Intent to Delay the July 1, 2017, Deadline for Electronic Submission of the 2016 300A Form
Last June, we informed you that OSHA had issued its final rule requiring certain employers to electronically submit injury and illness records to OSHA on an annual and quarterly basis. The final electronic rule titled, "Improve Tracking of Workplace Injuries and Illnesses," was released in the Federal Register on May 12, 2016 and can be found by clicking here .
The provisions of the final rule regarding employer injury reporting policies took effect on August 10, 2016. The requirements for electronic submissions of illness and injury records were to take effect in phases beginning with establishments with 250 or more employees being required to submit their 2016 300A form by July 1, 2017. However, in an email sent to its stakeholders OSHA recently announced its intent to delay the July 1st deadline for submission of the 2016 300A form.
On OSHA's website here , OSHA is reporting that it is not currently accepting electronic submissions, and intends to propose extending the July 1, 2017, due date for the submission of the 2016 Form 300A. It also reports that updates will be posted to the webpage when they are available. No further information regarding a new reporting deadline or the effect of the delay on future reporting deadlines is currently available.
Update on the Overtime Rules
In previous updates, we described the new overtime rules adopted by the Obama Administration and their potential effect on businesses such as contractors. Subsequently, we wrote about the injunction issued by a Federal court judge preventing the implementation of those rules, which otherwise were to go into effect December 1, 2016. When the injunction was entered, the DOL filed an appeal to the Fifth Circuit Court of Appeals. The states which had brought the challenge filed their response briefs as scheduled. But with the Trump Administration coming on board, the government has asked for several extensions to file its briefs for the purpose of allowing the new administration's leadership to review the case and consider the issues. At this point, the government's deadline has been extended until June 30.
Does this mean the overtime rule changes will be undone? Perhaps not. Recall that during confirmation hearings, Alexander Acosta, the new Secretary of Labor, hinted that he might not favor a total scuttling of the overtime rules. He noted that the overtime rules were last updated in 2004 and that it was unfortunate that sometimes rules that involve dollar values are not updated for a decade or more "because life does get more expensive." Acosta noted that if the original threshold salary figure ($23,660) were to be adjusted for inflation, then the updated number would be about $33,000. The Obama Administration's rule would have set the figure at $47,476.
However, Acosta also indicated that he believes the authority of the Secretary of Labor to set such a salary threshold is an issue that needs to be considered. A determination that the Secretary lacks such authority would be a significant departure from the practice of the Labor Department since the 1930's.
Now that Acosta has been confirmed, employers and employees alike are waiting to see what position the DOL takes on new overtime rules. The DOL could choose to drop its opposition to the lawsuits challenging the enforceability of the Obama rules. In that case, outside interest groups could continue the opposition, which would likely further extend the uncertainty. Alternatively, the DOL could develop a new set of rules which might implement some sort of increase, although probably not on the order of the drastic increase under the rules that were to go into effect in December. This process also will likely take time. We expect to know more by June 30.
For now, employers and employees need to continue operating under the overtime rules as in effect prior to the proposed new regulations. We will of course continue to monitor progress and provide updates when they are available. In the meantime, if you have questions please contact either Philip Siegel via e-mail here, or Scott Calhoun via e-mail here.

OSHA Prevails on Single Employer Theory of Liability
OSHA has a theory of liability where it seeks to have separate entities regarding as a single employer when three elements are present: (1) a common worksite; (2) interrelated and integrated operations; and (3) a common president, management, supervision, or ownership. In a recent case heard in Massachusetts, OSHA prevailed under this theory of liability when Administrative Law Judge Sharon Calhoun ruled that two Massachusetts contractors - A.C. Castle Construction Co, Inc. ("A.C. Castle") and Daryl Provencher d/b/a Provencher Home Improvements ("Provencher") - were operating as a single employer at a worksite where three employees were injured during October, 2014.
The employees at the worksite were employed by Provencher and were performing residential roofing work on a ladder jack scaffold when the wooden plank on which they were standing snapped, causing them to fall 20 feet to the ground. OSHA's investigation revealed that the wooden plank was not graded for scaffold use, and the invoice for the wooden plank made clear it was not for scaffold use. Other hazards included deficiencies with the scaffold's components and structure and lack of fall protection for the employees.
Because of what it perceived as highly integrated work operations, including common worksites and common management and supervision, OSHA cited both companies as a single employer. Judge Calhoun ultimately agreed, after consideration of the three elements of the single employer doctrine.

As it concerned the common worksite element, Judge Calhoun focused not on where each company maintained its office, but the actual worksite where the roofing work was being performed. In this instance, it was notable to Judge Calhoun that A.C. Castle solicited the work at the same location at which Provencher performed the work. As such, Judge Calhoun concluded that the companies shared a common worksite at the time of the accident.
Judge Calhoun also concluded the companies had interrelated and integrated operations. In reaching her conclusion, she was swayed by the fact that 95 percent of Provencher's income was from A.C. Castle, and that Provencher did not have a business license and had no credit accounts or money on hand necessary to buy materials or equipment for jobs. The business license, which allowed for the bidding of work, belonged to A.C. Castle, and Provencher's purchases of materials and equipment were made on accounts held by A.C. Castle.
A.C. Castle also supplied Provencher with a dump truck, on which A.C. Castle's business sign was attached, and the only advertising done at the worksite, in the form of yard signs, clothing and truck signs, was for A.C. Castle. There was no Provencher signage at the worksite.
A.C. Castle also exercised an unusual amount of control over Provencher's actions, which Judge Calhoun determined was atypical for a contractor/subcontractor relationship. Judge Calhoun noted that A.C. Castle arranged and paid for safety training for Provencher's work crew, A.C. Castle told Provencher when Provencher needed to hire more employees, and A.C. Castle placed advertisements for employees on behalf of Provencher. A.C. Castle also scheduled the roofing projects and told Provencher what order to do them in. All of these practices indicated a lack of arm's length dealing, according to Judge Calhoun, and were evidence that A.C. Castle and Provencher were a single employer.
Judge Calhoun also relied on the facts above to conclude that A.C. Castle shared common management and a common supervisor. The Judge determined that the facts supported a finding that Mr. Provencher was a supervisory employee working for A.C. Castle. In support of her conclusion that the companies did have common management and supervisor, Judge Calhoun also found it notable that A.C. Castle had represented to its customers and the Commonwealth of Massachusetts that it did not subcontract its projects to another employer.
On April 17, 2017, Judge Calhoun's decision became a final order of the Review Commission. A.C. Castle does have 60 days from the date of the final order to appeal to the 1st Circuit Court of Appeals. In the meantime, A.C. Castle remains responsible for paying $173,500 in penalties.
Federal Appeals Court Outlaws Sexual Orientation Discrimination
On April 4, 2017, a federal court ruled that federal law prohibits employers from discriminating against employees because of their sexual orientation. This decision, which is the first of its kind, came from the 7th Circuit Court of Appeals, which reverses three decades of precedent on the issue and makes the issue of sexual orientation discrimination ripe for review by the U.S. Supreme Court.
In 2016, the 7th Circuit heard the case Hively v. Ivy Tech Community College of Indiana. The plaintiff-employee in Hively alleged that she was fired because she was a lesbian. Specifically, she alleged that she was denied full-time employment and certain promotions because she was seen kissing her girlfriend goodbye in her employer's parking lot. The plaintiff argued that she was subject to sex discrimination, based on the theory that a male employee who was found kissing his girlfriend would not face the same consequences.
At the time, the three-judge panel held that it was bound by precedent, which previously did not recognize sexual orientation as a basis for discrimination. According to the panel, it could not overturn any precedent barring (a) new legislation from Congress; (b) intervention by the U.S. Supreme Court; or (c) a determination that its previous interpretation was "intolerable simply in defying practical workability."
While the panel refused to overturn longstanding precedent, it was conflicted in its conclusion, particularly as it related to prong (c) above. The panel recognized that discrimination based on one's gender nonconformity - behavior that does not match typical masculine and feminine gender norms - is a prohibited form of sex discrimination, and that it is difficult to discuss sexual orientation without gender nonconformity. However, due to the court's strong adherence to precedent, the panel determined that Title VII of the Civil Rights Act did not extend to a prohibition of discrimination based on sexual orientation.
After the panel's ruling, the plaintiff-employee asked the full 7th Circuit court to rehear the case, which it agreed to do. The full court did in fact rehear the case en bac, where they reversed the three-judge panel's ruling.
In its reversal, the full 7th Circuit court explained that the case surrounded the plaintiff-employee's failure to conform to the female stereotype of heterosexuality. The court also held that there is no distinction between gender nonconformity and sexual orientation.

Even though the 7th Circuit's decision applies only to three states - Illinois, Indiana, and Wisconsin - the decision affects employers throughout the country. The Equal Employment Opportunity Commission (EEOC), which is tasked with enforcing Title VII, has already held the position that Title VII prohibits sexual orientation discrimination and is currently pursuing claims against employers based on such actions. However, the 7th Circuit's decision runs counter to other federal courts; Every other appellate court that has considered this issue has held that Title VII does not protect against discrimination on the basis of sexual orientation. Indeed, the 11th Circuit just reaffirmed its stance this year in Evans v. Ga. Reg'l Hosp. No. 15-15234 (March 10, 2017), but it may decide to rehear the case. A 2nd Circuit ruling in Christiansen v. Omnicom Group, Inc., No. 16-748 (March 27, 2017) could also be reheard.
For the time being, employers should proceed cautiously on this issue given the split in opinions with the federal circuit courts and the EEOC. Given the current legal uncertainty, experts caution that it is very dangerous for an employer to discriminate on the basis of sexual orientation. It is recommended instead that employers protect themselves by adding sexual orientation to their policies as a prohibited form of discrimination. Employers should also consider adding sexual orientation harassment to their training materials, so as to prevent any potential litigation down the road.
If you have any questions about Title VII of the Civil Rights Act and sexual orientation discrimination, please contact William Burnett via e-mail by clicking here.

Congressional Review Act Overturns OSHA Rule Imposing Continuing Recordkeeping Requirements
In December, OSHA finalized a rule which it titled "Clarification of Employers' Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness." The rule was in response to the Volks case, in which the D.C. Circuit held that OSHA could not issue citations for injury or illness record-keeping violations beyond the 6-month statute of limitations contained in the Occupational Safety and Health Act. OSHA's "clarification" allowed OSHA to issue citations to employers up to 6 months following the end of the 5-year retention period required for those records.
On April 3, 2017 President Trump signed a joint resolution passed by the House and Senate pursuant to the Congressional Review Act, overturning the "Volks rule." Critics of the rule characterized it as clear overreach by OSHA, imposing unnecessary burdens on employers. The resolution does not change the requirements under the Act for employers to maintain injury and illness records for 5 years. But it does eliminate the exposure for potential violations beyond the 6-month limitation period for OSHA to issue citations.
Please contact Philip Siegel or Scott Calhoun if you have further questions about the Volks case or an employer's ongoing record-keeping requirements for injury and illness.
Immigration Compliance: USCIS Announces Changes to Permanent Resident Alien Card and Employment Authorization Document
On April 19, 2017, U.S. Citizenship and Immigration Services (USCIS) announced plans to redesign the Permanent Resident Card (aka Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS began issuing these new cards as of May 1, 2017.
These new card designs are a part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement (ICE) to enhance the security of documents by protecting against the threat of documentation tampering, counterfeiting, and fraud.
The new cards come with fraud-resistant security features and enhanced graphics that are more secure and tamper-proof than the cards currently in use. Specifically, the redesigned cards will display the following features:  
  • Both cards will display the individual's photo on both sides;
  • Both cards will contain a graphic image and color palette that is unique to each card:
    • Green Cards will contain an image of the Statute of Liberty and a largely green palette;
    • EAD cards will contain an image of a bald eagle and a largely red palette;
  • Both cards will contain embedded holographic images;
  • Neither card will display the individual's signature; and
  • Green Cards will no longer display an optical stipe on the back of the card.
Some of the Green Cards and EADs issued by USCIS as of May 1, 2017 may display the existing design, as USCIS intends to continue using its existing stock of cards until those supplies have been fully exhausted. However, both the existing and new Green Cards and EADS will remain valid until the expiration date shown on each card. Some older Green Cards that do not have any expiration date will also remain valid.
Both the new and existing versions of the Green Card and EAD are sufficient for use with Form I-9, Employment Eligibility Verification, and E-Verify. More information regarding the changes with these cards can be found here on the USCIS website.
If you have any questions about the redesign of the Green Card and EAD, please contact William Burnett via e-mail by clicking here, or you can call him directly at (404) 469-9183.