The Occupational Safety and Health Administration (OSHA) has published a final rule amending a regulation regarding the right to designate a representative to accompany OSHA inspectors during a workplace inspection. Why do we need this, you ask? In the world of occupational safety and hazards, OSHA administers regulations and has the ability to levy penalties. One way it does these things is worksite inspections. During inspections, OSHA inspectors assess workplace conditions, review safety records, and interview employees to ensure employers are in compliance with regulations. During these in ..read more

It is every employer’s nightmare: You find out that employees (or former employees) are claiming that they were not paid properly and are due overtime for the last two or three years. This primarily arises because you classified the employees as exempt (salaried) under the FLSA and they are challenging that classification, or the employees were simply not getting paid time and a half for every hour worked over 40 in a workweek (or under a different state law standard). You certainly did not intentionally misclassify anyone or deny employees overtime pay. How do you handle the matter? Step One ..read more

The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations for employees with disabilities. To help determine effective accommodations, employers should use an “interactive process,” which simply means that employers and employees with disabilities who request accommodations work together to brainstorm accommodations. While it’s not a per se requirement, the law favors an “interactive process” for determining whether an effective accommodation is available. However, many employers may get “tripped up” on this process by not vetting addit ..read more

Workplace violence is an issue that impacts employees and employers alike. While OSHA uses the General Duty Clause to address such issues, some states are enacting their own laws about it. As we reported a few weeks ago, Texas recently enacted a new law to protect healthcare employees from violence in the workplace. The Texas Legislature also implemented Chapter 104A, “Reporting Workplace Violence,” to the Texas Labor Code. The law became effective on September 1, 2023, and applies to all Texas employers. Chapter 104A requires Texas employers of all sizes to post a notice with the contact info ..read more

You may recall that in 2021 the State of Florida, in a much-publicized move, passed a law called the “Stop W.O.K.E. Act,” which banned Florida employers from mandating employee attendance to any training or instruction that “espouses, promotes, advances, inculcates, or compels” a certain set of beliefs regarding the treatment of individuals based on race, color, sex, or national origin. The law did not stop training on the general subject of protected classes, but instead any discussion that “endorses” ideas that a certain race is either morally superior to another or is inherently discri ..read more

Individual employees helped the government secure another successful year in False Claims Act (FCA) litigation, as both plaintiffs (whistleblowers) and individual defendants. Individual whistleblowers were responsible for a substantial percentage of 2023 suits, helping the government enforce FCA provisions against companies across all sectors. Of the more than $2.68 billion in settlements and judgments, over $2.3 billion arose from qui tam suits filed by whistleblowers in 2023. Over 700 qui tam suits were filed in 2023, and the government paid out over $349 million to individual whistleblower ..read more

If an individual’s disability causes involuntary racist or profane utterances, what would a reasonable accommodation under the ADA look like? In Cooper v. Dolgencorp, LLC, the Sixth Circuit faced just such an inquiry. ADA Primer The ADA protects a qualified individual with a disability who can perform the essential functions of his or her job with or without reasonable accommodation. Typically, the inquiry begins with determining what tasks make up the essential functions of a position. Sometimes there are physical requirements about pulling or pushing an amount of weight. Other ..read more

As we have been blogging during the Biden presidency, the National Labor Relations Board has become quite aggressive these days. The aggression toward employers has been shown in the types of conduct the Board finds to be unlawful (like simply holding meetings with employees), the types of relief that the Board seeks (like compensatory damages in addition to backpay), and also how often the Board uses its injunctive remedy to correct alleged violations before the administrative process is completed. With regard to this last category of relief, known as a “10(j) injunction,” the United States S ..read more

Texas has now joined states like California in creating statutory protections against workplace violence against healthcare workers. Senate Bill 240, now Chapter 331 of the Texas Health and Safety Code, requires healthcare facilities in Texas to address, prevent, and respond to incidents of workplace violence in the healthcare industry. Quick Overview Texas healthcare facilities must adopt workplace violence prevention policies and plans by September 1, 2024. Texas healthcare facilities now have defined obligations when responding to incidents of workplace violence. While Chapter 331 lacks a ..read more

Changes in supervision may result in fresh ways of doing things. Certain rules that were never fully enforced may now come to the forefront. Can a new supervisor’s radical change in a long-term employee’s performance rating be the basis for a claim of pretext in an employment discrimination claim? The Seventh Circuit appears to say yes in the case of Vichio v. U.S. Foods, Inc. Different Way of Seeing Things? Nicholas Vichio ran a warehouse for U.S. Foods in Illinois. From 2013 to 2016, his supervisors gave Vichio nothing but high marks in performance reviews. He was conside ..read more