HR & the Law in the News
November 2016, Volume 15, Issue 11
Please enjoy this latest edition of FiveL Company's monthly e-newsletter, bringing you current news related to employment policies, practices and programs. 
Ignorance is Bliss?     
        Agencies at Odds or Prospective Partners?
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How do we solve the puzzle of maintaining not only a non-hostile work environment but one that embraces workplace civility while not treading on employee rights?  I am encouraged by the EEOC's June report from the Select Task Force on the Study of Workplace Harassment. Let me lay the ground work.  So we know that under Title VII of the Civil Rights Act of 1964, plus a patchwork of state and local laws that most employers must provide a non-hostile workplace.  That is, a workplace that if free to workplace harassment or discrimination.  We also know that over the last several years the National Labor Relations Board (NLRB) has issued decisions that make that task more difficult.  See the July 2015 edition of this newsletter or the August 2015 webcast. More recent and egregious examples are described in this article in which the NLRB ruled that directed profanity and exposing private body parts was protected activity in the National Labor Relations Act!

In the EEOC's June report they twice mention reaching out to the NLRB.  "In light of the concerns we have heard, we recommend that EEOC and NLRB confer and consult in a good faith effort to determine what conflicts may exist, and as necessary, work together to harmonize the interplay of federal EEO laws and the NLRA...Finally, we recognize that broad workplace "civility codes" which may be read to limit or restrict certain forms of speech may raise issues under the NLRA, which is outside of the jurisdiction of EEOC. In light of that potential tension, we recommend that EEOC and NLRB confer and consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and the federal EEO statutes."

I am heartened!  I applaud the EEOC and members of the Task Force.  I see great opportunity and look forward to hearing of this new venture, dialogue and opportunity to better understand how we may balance employers' need to not just meet legal requirements but foster a workplace that promotes civility and respect for all. 
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Promoting Workplace Safety Without Fear of Retaliation
In between myriad conversation about how to navigate the new wage and hour rules some of you have also asked a few questions about OSHA's new anti-retaliation rule. After two delays the rule is currently scheduled to take effect December 1st. The rule has three primary provisions:
  1. An employer's procedure for reporting work-related injuries or illnesses must be reasonable and must not deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. For example, does the procedure require immediate reporting without accounting for work-related injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to the employee to require reporting to the employer? Or does the procedure make reporting so difficult or complicated that a reasonable employee would be discouraged from reporting an injury or illness? 
  2. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. Employers can meet this requirement by posting this poster in the workplace.  
  3. An employer may not retaliate against employees for reporting work-related injuries or illnesses. While this prohibition already exists under current OSHA regulations the agency could not take action against the employer unless the employee filed a timely claim.  Under the new rule OSHA can cite the employer 
It seems pretty clear cut. So what questions are arising?  I hear questions or statements indicating the new rule prohibits employers from having mandatory post-accident substance testing policies or procedures.  OSHA's website expressly reads, " Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness." For example, "if an employee reports a repetitive strain injury or is injured as an innocent bystander and the employer requires post-incident drug testing, then that testing could violate [the rule]...In contrast, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury experienced while operating a crane or a forklift if the employee's conduct contributed to the injury."

Incentives can also still be offered so long as the incentive program does not penalize workers for reporting work-related injuries or illnesses.

You can find more information from OSHA's Fact Sheet and Q & A publications. 
Upcoming Events!

November and December are "booked" with private, multi-state client training programs.  But see below for the last webcast of 2016 then stay tuned for the 2017 discounted, annual subscription!

Wednesday, November 23rd -  Next Webcast , " Employment Law Update: The Year in Review ," 10 - 11:15 a.m. Pre-approved by HRCI & SHRM for 1.25 credits. 

For a full list of upcoming events click here
Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.