February 2017
Hendrick, Phillips, Salzman & Siegel, P.C.

Effective February 1, 2017, our firm is now Hendrick, Phillips, Salzman & Siegel, P.C.  Welcome to our first e-mail blast as Hendrick, Phillips, Salzman & Siegel! 

OSHA Form 300-A to Be Posted From February 1 - April 30

The Occupational Safety and Health Administration requires most employers with 10 or more employees, including those in the construction industry, to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. The current regulations require that these records must be maintained at the worksite for at least five years. Additionally, each February through April, employers must post in a place easily accessible to employees, such as a break room, Form 300-A, which is a summary of the injuries and illnesses recorded the previous year. The Form 300-A must be posted for three months, from February 1 through April 30.

Form 300A summarizes the total number of work-related injuries and illness that occurred during the prior calendar year and entered into OSHA Form 300, which logs such injuries and illnesses. Whereas Form 300 should include details of the nature of the injury and where it occurred, Form 300A only totals the number of deaths, cases with days away from work, total number of days away from work, etc. from all recordable cases. Recordable cases are those that involve: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, diagnosis of a significant injury or illness by a healthcare professional, or a needlestick or sharps injury involving contamination by another person's blood or other potentially infectious materials.
Construction employers must post the Form even if no recordable injuries occurred during the prior year, with zeroes entered in the spaces. 

As of this year, employers will also need to be ready to comply with a new form of reporting. In an effort to improve workplace safety, OSHA implemented a new rule, which took effect on January 1, 2017 requiring the electronic submission of injury and illness reports.  The new rule requires employers with 250 or more employees, or employers with 20 to 250 employees in high-risk industries, including construction, to electronically submit the same injury and illness data that is currently required of the OSHA 300 Log via OSHA's secured website. The online reporting will improve OSHA's ability to analyze the data and will enable OSHA to use its enforcement and compliance assistance resources more efficiently. The website for submitting the electronic data is scheduled to go live in February 2017.

In addition, OSHA intends to post some of the data collected to its public website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. OSHA has stated that the amount of data submitted will vary depending on the size of company and type of industry. It is OHSA's expectation is that by making injury information publicly available it will "nudge" employers to focus on safety.

It is also important to note that while the new rule took effect on January 1, 2017, the compliance schedule will be phased in over the next two years. The new rule directs businesses with at least 250 employees in industries covered by the recordkeeping regulation to submit information from their 2016 Form 300A by July 1, 2017, and from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019, and every year thereafter, the information must be submitted by March 2. Those compliance dates also apply to businesses with 20-249 employees in in certain high-risk industries, including construction, but only for the 300A form.   As a result, employers who are not used to recording incidents in an electronic format will have a chance to adjust their habits to better comply with the new regulations.
In view of the legal implications that the new rule may have for employers, the attorneys at Hendrick, Phillips, Salzman and Siegel are here to assist with any questions and help plan for anticipated impacts that these changes may have on your business.
Supreme Court Will Determine Class Action Waiver Issue
On January 13, 2017, the Supreme Court decided to hear appeals involving the enforceability of class action waivers, an issue that has clogged up the courts for years and caused confusion for many employers.
In January 2012, the National Labor Relations Board (NLRB) ruled that employers are barred from the use of class action waivers in arbitration agreements with employees who are covered by the National Labor Relations Act (NLRA). In its decision, D.R. Horton, 357 NLRB No. 184 (2012), the NLRB reasoned that class action waivers limit an employee's right to engage in "concerted activities" in furtherance of their "mutual aid or protection." The NLRB, recognizing that their decision may be seen at odds with Supreme Court's approval of class action waivers under the Federal Arbitration Act, reasoned that the Supreme Court's prior cases involving class action waivers never involved the NLRA and, therefore, were not applicable.
While the NLRB may have been confident in its reasoning, many federal and state courts were not. Indeed, the Firth Circuit declined to enforce the decision from D.R. Horton, and many lower federal courts also declined to follow the NLRB's decision, citing the Firth Court's rejection. Eventually, the Second and Eight Circuit courts also refused to follow D.R. Horton.

Despite the rejection of federal courts, the NLRB nevertheless stuck to its original position in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Again, the Fifth Circuit refused to follow the NLRB's decision.
Although many federal courts continue to reject the NLRB's decision, two Circuit courts have recently sided with the NLRB, which has created a split of opinions. The Seventh Circuit was the first federal court of appeals to side with the NLRB in Epic Systems v. Lewis in May 2016, and the Ninth Circuit continued the trend in August 2016 in Ernst & Young, LLP v. Morris.

Currently, what is exists is a four-year long debate between the NLRB and most federal and state courts, and a recent split of opinion between the Second, Firth and Eight Circuits, who reject the NLRB's decision, and the Seventh and Ninth Circuits, who have enforced the decision. Naturally, the lack of a clear consensus has caused great confusion for employers, who lack clear direction on whether class action waivers are lawful or not. Indeed, many courts are regularly enforcing arbitration agreements with class action waivers, while the NLRB continues to file unfair labor practice actions against employers for maintaining such arbitration agreements. The Fifth Circuit is regularly rejecting the NLRB's unfair labor practice findings, and employers in other regions are subject to different and conflicting interpretations of NLRB decisions based on their jurisdictional circuit.
Given the confusing surrounding this issue, the Supreme Court has decided to hear this matter. The Court has agreed to hear appeals on the Murphy Oil, Lewis, and Morris cases, which the Court has decided to consolidate into one decision.
Presently, opening briefs are due by February 27, 2017. Amicus briefs in support of the employers are due by March 6, 2016, unless time extensions are granted, which is likely. Experts expect the Court to render its decision by the summer of 2017.
Adding another layer of uncertainty to the matter is the prospect of a 4-4 tie decision from the Supreme Court, which would leave the current status quo in place. While it is true that President Trump has nominated Judge Gorsuch to the Supreme Court, it is uncertain whether Judge Gorsuch will be confirmed and seated on the Court prior to oral arguments on this issue. Further, incoming appointees to the NLRB may alter the NLRB's position on this matter even before the Supreme Court issues a ruling on the appeal. As always, we will be sure to keep you informed as new developments arise.
For more information on this and other employment-related matters, please contact William E. Burnett at 404-469-9183 or via e-mail by clicking here, or  Philip Siegel at 404-469-9169 or via e-mail by clicking here.  

Maximum Penalty Amounts for OSHA Citations Increase Again

In our June e-mail blast, we discussed the proposed penalty increases for Occupational Safety and Health Administration (OSHA) violations as proposed in the November 2015 Federal Civil Penalties Inflation Adjustment Act Improvements Act. The Act calls for Departments to review their current penalties for violations and adjust for inflation. While the increased penalties took effect on August 1, 2016, inflations adjustments were only recently made. As of January 13, 2017, the new maximum penalty amount for a serious violation is $12,675.00, and the maximum penalty for a repeat or willful violation is $126,749.00.
If your company is the subject of an OSHA inspection and receives an OSHA citation, you can call Philip Siegel to assist with the defense to the citation. Philip has over 15 years of experience defending construction companies from OSHA citations. Philip can be reached directly at (404) 469-9197, or you can e-mail him by clicking here.

NLRB Issues New Decision on Employer Work Rules
The NLRB is continuing its efforts to prevent employers from using employment policies and work rules in ways the NLRB finds interferes with an employee's right to engage in concerted protected activity.
In a decision released on November 8, 2016, the NLRB ruled that Component Bar Products, Inc. violated its employee's Section 7 rights by discharging the employee for violation of its employment policies. The employee in question ("Stout") had advised a co-worker that the co-worker's supervisor was unhappy and that the co-worker could be out of a job. Component Bar Product maintained employment policies prohibiting "insubordination or other disrespectful conduct" and "boisterous or disruptive activity in the workplace."
The NLRB determined that Stout's discussion with his co-worker was concerted protected activity under Section 7 and that therefore Stout should not have been dismissed. Moreover, the NLRB upheld the ALJ's decision that the employee policies adopted by Component Bar Products were invalid on their face because they could be reasonably construed to discourage or "chill" permitted employee conduct. Prohibiting "insubordination or other disrespectful conduct" would impermissibly prohibit employees from making complaints about work conditions or their supervisors that might be perceived "as an affront" to the supervisor's authority.
The NLRB was also concerned that the policy prohibiting "boisterous or disruptive activity in the workplace" would prohibit an employee's right to engage in a work stoppage or other protected Section 7 activity. Because Component Bar Products did not provide employees any examples of the kinds of boisterous or disruptive activity that was prohibited, employees could reasonably construe the policies to prohibit activity that is otherwise protected. In short, the NLRB continues to be concerned about broad policy statements that employees might understand to prohibit activity that is protected under Section 7 of the NLRA.
Given this regulatory environment, we are advising our construction contractor employer clients to consider reviewing their policy manuals to identify and, if necessary, modify policies that might be considered to be overbroad. If you have any further questions about the Component Bar Products decision or the effect of the NLRB's interpretations on employee policy manuals, please feel free to contact Scott Calhoun at 404-469-9195 or via e-mail by clicking here , or Philip Siegel at 404-469-9197 or via e-mail by clicking here .