If The DOL Doesn’t Get You, The NLRB Will

The U.S. Department of Labor Wage and Hour Division and the National Labor Relations Board recently entered into a Memorandum of Understanding that does not bode well for employers. Under this Memorandum, the DOL and NLRB will share with each other any information and data that they discover during an investigation that they believe may show a violation of a law enforced by the other entity. For example, if an employee tells a DOL investigator that the employer’s “publicity policy” forbids employees from speaking ill of the employer on social media, the DOL investigator will refer the information to the NLRB for investigation as potential a Section 7 violation. 

The Memorandum goes even further: it also provides that when one agency “has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the [other agency],” it will “advise the complainant/employee(s) that an opportunity may exist to file a charge with the [other agency].” 

So, not only will one agency tell the other that it needs to investigate you, but it will also tell the complainant that he should file another charge against you.

To better enforce this commitment, the DOL recently announced that it is hiring over 100 new investigators. 

This is all a part of President Biden’s stated pro-labor/pro-union mandate. If you are not sure if your policies and practices are in compliance with the NLRA and the FLSA, now is the time to make sure that they are and to implement any needed changes. Don’t wait until the DOL or NLRB are knocking on your door.

As always, don’t hesitate to call me directly if you have any questions or need assistance. 

Think Twice Before Requiring Your Employees to Pay for Their Own Covid Tests

Although OSHA’s COVID ETS does not specifically require employers to pay for the cost of weekly COVID tests, it does recognize that state or local laws may require an employer to do so. In all likelihood, Louisiana law does just that.

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The Department of Labor Is Coming After Us All

The halcyon days of a pro-business Department of Labor are truly gone. In the past year, the DOL has withdrawn many Opinion Letters favorable to business; rescinded the Trump-Era joint employer rule and terminated a program that allowed employers to self-report FLSA violations in exchange for avoiding penalties. Now, the DOL has announced that it is hiring one hundred additional wage and hour investigators who will be specifically tasked to identify overtime and classification errors by employers.

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Recent Fifth Circuit Ruling Offers Great Tips for Avoiding Osha Citations

Yesterday the Fifth Circuit Court of Appeals issued a ruling in a case in which an employer, Angel Brothers, sought review of a decision from the Occupational Safety & Health Review Commission affirming a Citation against it.  You can find the decision here if you care to read it.  https://www.ca5.uscourts.gov/opinions/pub/20/20-60849-CV0.pdf

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Fifth Circuit Court of Appeals Issues Stay of Osha Covid-19 ETS

For those of you who may not have heard yet, as we predicted, the Fifth Circuit Court of Appeals has issued an Order staying application of the new OSHA COVID-19 ETS.  The stay is only temporary, and the parties will orally argue their cases tomorrow, after which the court will issue a ruling, which could extend or vacate the stay. 

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EEOC’s 10/25/2021 Updated Technical Assistance Regarding COVID-19 Vaccination Religious Exemption Requests Really Doesn’t Change Much

On October 25, 2021, the EEOC issued updated guidance related to COVID-19: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  You can find the updated guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

The new guidance adds section L.1 through L.5 dealing with Title VII and religions objections to COVID-19 vaccine mandates. In my opinion, the updated guidance does not change much and should really be more of  a re-affirmation of what you are already doing.

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Back to the Basics

Some of you probably know that my father is the former head football coach of the LSU Football Tigers.  My Dad used to tell me that if you take care of the basics: knowing your assignment, blocking, and tackling, the wins will usually follow. In HR, like football, there are some basic concepts that we really need to get right if we are going to be successful.  (Have you ever seen a more tortured segue from football to wage and hour law?)

One of the basic concepts that I have recently seen employers neglect is that an employee can almost never qualify as exempt from overtime under the FLSA if they are not paid on a salary basis.  Over time, deductions from salaries seem get implemented without anyone noticing that they are jeopardizing the exempt nature of the position.

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Democrats Propose Bill to Increase Maximum Penalty for OSHA “Willful” Violations to $700,000 as Part of $3.5 Trillion Budget Reconciliation Package

The proposed penalty increase is part of a $707 million OSHA budget increase through 2026 that is contained in President Biden’s $3.5 trillion budget reconciliation package.  President Biden has repeatedly expressed his intent to ramp up staffing levels at OSHA to facility increased inspections and investigations.  This budget increase will allow OSHA to do just that.

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OSHA is Tripling Down on Heat-Related Hazards

Today the Occupational Safety and Health Administration issued a Press Release announcing OSHA’s intention to take aggressive action to “combat the hazards associated with extreme heat exposure…” Given our climate, these actions will necessarily impact a great many of us.

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