October, 2017
Federal Court Invalidates the Obama-Era Overtime Rules
On August 31, a Federal court judge struck down the Obama-era overtime rules. The ruling was issued by the same judge who issued an injunction preventing the implementation of those rules, which otherwise were to go into effect December 1, 2016. The court has now ruled that the regulations are invalid because they improperly focused on salary level without giving consideration to the duties and responsibilities elements of the overtime exemption contained in the Fair Labor Standards Act.
The Obama-era overtime rule established a minimum salary level of $913 per week ($47,476 annually) for an employee to qualify for the exemption from overtime. The Court held that the rule's predominant focus on salary level, without regard to the nature of an employee's job duties and responsibilities, did not give effect to the intent of Congress as expressed in the FLSA. The DOL had estimated that the new rule would have required overtime pay for an additional 4.2 million workers. By requiring overtime pay for so many people who perform exempt duties, the rule did not give effect to the intent of Congress to consider not only salary but also job duties and responsibilities in determining exempt status.
The Court also held that the automatic updating mechanism in the rule, which would have adjusted the minimum salary level every three years, was invalid. In general, the rule was overturned because it failed to give effect to Congressional intent and because it was not a "permissible construction" of the FLSA.
On September 5, the DOL announced that it would not appeal the decision, meaning that the Obama-era overtime rule is now officially dead. The Court specifically did not rule whether DOL has the authority to establish salary thresholds in connection with its regulatory interpretations of the exemption under FLSA. However, as we have noted previously, the DOL has asserted that it has the authority under the FLSA to set salary thresholds for the payment of overtime. We anticipate that a salary level component will be included when the DOL issues new rules.
To summarize, the Obama administration's overtime rule has been ruled invalid and will not be implemented. The DOL has begun the process of developing a new set of rules which likely will implement some sort of increase, although not on the order of the drastic increase under the invalid rules. We will keep you updated on any new developments. In the meantime, if you have questions please contact either Philip Siegel at (404) 469-9197 or via e-mail by clicking here, or Scott Calhoun at (404) 469-9195 or via e-mail by clicking here.  You can also follow Philip Siegel on Twitter by clicking here.
New E-Verify Poster Published
In early September, E-Verify released a redesigned participation poster. E-Verify participants are required to replace their current participation poster with the updated poster. The participation poster must be displayed in English and Spanish by E-Verify participating employers to inform their current and prospective employees of their legal rights and protections. The new version of the participation poster explains employees' and prospective employees' rights in both English and Spanish, so employers can simply post one poster to meet the requirement to display the poster in English and Spanish. The new participation poster can be accessed by clicking here.
If you have any immigration related questions, including questions concerning use of E-Verify, please contact Philip Siegel. You can reach Philip directly at (404) 469-9197, or you can e-mail him by clicking here. You can also follow Philip on Twitter by clicking here.
EEO-1 Pay Data Requ irement Indefinitely Suspended
On August 29, 2017, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC) that it was indefinitely suspending the pay data requirement of the EEO-1 report that was set to take effect. This change was made by the OMB pursuant to its authority under the Paperwork Reduction Act.
The pay data requirements of the EEO-1, Component 2, were announced late in the Obama Administration and would have applied to employers with 100 or more employees in an effort to ensure equal pay and close the wage gap. March 2018 would have been the first time that employers were required to submit then new data. After the indefinite suspension, however, employers are only required to submit the previously-approved EEO-1 form, which traditionally collected data based on race, ethnicity, and gender according to certain occupational categories.
The EEOC has said that it will review the effectiveness of the pay data information during the indefinite suspension period. Apparently, there were some in the Obama Administration that questioned the effectiveness of the data, since it would come from W-2 forms, which can include other information besides pay for hours worked. In addition, there were also concerns that the pay data would not be precise enough, since the data would have been provided based on 12 different pay bands for each EEO-1 job category.
Suspension of the pay data also allows the Trump Administration to get its nominees in place at the EEOC before the agency has to complete a full review of the pay data requirement. Currently, there is one Republican on the five-member commission, but the confirmation of President Trump's nominees will create a Republic majority.
Separately, the EEOC has reminded federal contractors that the VETS-4212 form, in which federal contractors identify their affirmative action efforts to employ veterans, is still required by the end of September. Previously, the EEO-1 and VETS-4212 were both submitted at the end of September. With the addition of the pay data requirement of the EEO-1, however, employers were given until March 2018 to submit the EEO-1 form to allow time for employers to adjust to the new reporting requirements.
Please contact William E. Burnett at web@hpsslaw.com or (404) 469-9183 to learn more about the reporting requirements of the EEO-1 form.
Please contact William E. Burnett at (404) 469-9183 to learn more about the reporting requirements of the EEO-1 form.  You can send William an e-mail by clicking here.
OSHA Electronic Recordkeeping Website Hacked
While OSHA's recordkeeping regulation is on hold until December 1, 2017 (and it may be on hold longer than that), OSHA did open its web portal for the submission of injury and illness information on August 1, 2017. Shortly after the web portal opened, however, OSHA shut it down. On August 14, OSHA suspended user access to the web portal after it was notified by the Department of Homeland Security of a potential compromise of user information. Luckily for OSHA, only a single company was affected by the security breach. The web portal did reopen on August 25. You can access the electronic recordkeeping web portal by clicking here.
Through our e-blasts, we will continue to keep you updated on OSHA's implementation of its electronic recordkeeping regulation. In the meantime, if you have any questions regarding the electronic recordkeeping rule, including its anti-retaliation component (which addresses post-accident drug testing), please contact Philip Siegel. You can reach Philip directly at (404) 469-9197, or you can e-mail him by clicking here. You can also follow Philip on Twitter by clicking here.
OSHA Removes the List of "Named and Shamed" Employers from its Website
Multiple sources have recently reported that OSHA has removed the published list of workplace safety incidents and the names of the companies involved in those incidents from its official website as part of its elimination of the Obama administration's "name and shame" policy. OSHA's website had previously displayed more than 4,500 workplace incidents that resulted in worker fatalities and the Obama administration had been aggressively publishing press releases regarding workplace injuries and fatalities. However, OSHA has now replaced the published workplace incidents with a list of OSHA's cooperative program recognizing employers who create safe workplaces.
Although the list of safety incidents and associated companies was just recently removed from OHSA's website, it should come as little surprise to those tracking the Trump administration's policies. As early as March of 2017, multiple reports indicated that the Trump administration had quietly ended OSHA's "name and shame" policy. Since President Trump took office, the amount of reports disclosing the names of workers and the circumstances of their deaths have been rolled back significantly. Some commentators argue that the move is in line with the Trump administration's deregulation goals and could signal an era where regulators stress voluntary compliance with safety laws instead of aggressive enforcement. Since taking office, President Trump has also signed repeals of the so-called "blacklisting rule," which required federal contractors to report workplace safety violations and was intended to prevent the government from contracting with those contractors, and, as we have previously reported, delayed the implementation of the electronic reporting requirements, which some considered an expansion of the "name and shame" policy.    
The aggressive implementation of the "name and shame" policy by the Obama administration has been controversial from its beginning. Some groups have argued that the policy unfairly smeared employers before the facts of the workplace safety incidents were known and that the policy did not improve workplace safety. While others, including OSHA under the Obama administration, have argued that the fear of public shaming through these publications was a strong deterrent and ending the "name and shame" policy eliminates an effective tool from OSHA's already limited enforcement toolbox.
Either way, the construction jobsite remains a dangerous place for the construction worker. The AFL-CIO's 2017 edition of "Death on the Job: Toll of Neglect" reported that 937 construction workers were killed in 2015, which represented an increase in the number and rate of construction deaths for the second year in a row after years of decline. Accordingly, no matter the policies implemented or eliminated by the government, construction industry employers must take a proactive approach to jobsite safety to ensure the health and well-being of their employees.