October 2018 E-Update


Click here to view entire E-Update as a PDF


OSHA Once Again Permits Broad Post-Incident Drug Testing and Rate-Based Safety-Incentive Programs

In yet another example of the Trump administration reversing course on Obama-era guidance, the Occupational Safety and Health Administration issued a “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv),” in which it retreated from the significant restrictions the prior administration had placed on such activities. For more, click here.

DOL Announces New Compliance Tools for New and Small Businesses

The Department of Labor announced on October 17, 2018 two new webpages intended to assist both businesses and workers on compliance with the laws enforced by the DOL’s Wage and Hour Division, including the Fair Labor Standards Act, the Family and Medical Leave Act, and child labor laws.  For more, click here.

New Workplace Obligations for D.C. Employers – Generally and Those of Tipped Workers

On October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018,” which includes a new posting requirement for all employers and broad new obligations for employers of tipped workers. For more, click here.



OSHA Creates Targeting Program Based on 300A Submissions

The Occupational Safety and Health Administration is implementing a site-specific targeting program based on injury and illness data from electronically-submitted Forms 300A for CY 2016, which certain employers were to have submitted by December 15, 2017. For more, click here.

COBRA Notice Violations May Result in Payment of Employee’s Medical Expenses

In the first federal appellate decision to address the remedy for violations of the Consolidated Omnibus Budget Reconciliation Act’s (COBRA) notice provisions, the U.S. Court of Appeals for the Fifth Circuit held that an employer may be liable for the payment of an employee’s medical expenses. For more, click here.

Inconsistent Explanations Undermine Employer’s Defense

Because there were “inconsistencies and contradictions” in the supervisor’s and HR director’s explanations as to why the company began an investigation that led to an employee’s discharge, the U.S. Court of Appeals for the Seventh Circuit found that the employee had established a triable case for whether she was actually fired in retaliation for a sexual harassment complaint.For more, click here.

Employers Should Provide Harassment Policies In Applicable Languages

A recent case highlights the need for employers to provide harassment policies in the language(s) spoken by their workforce. For more, click here.

Employer Must Pay for Post-Offer Medical Exams

If an employer requires an applicant to obtain a post-offer medical exam, the employer must pay for the exam, according to the U.S. Court of Appeals for the Ninth Circuit. For more, click here.

Corporate Entities May Be Considered Employees Under the FLSA

Individuals who created corporate entities that then performed work for a company as “franchisees” were nonetheless found to be employees under the Fair Labor Standards Act, according to the U.S. Court of Appeals for the Tenth Circuit.Circuit. For more, click here.

Adverse Employment Action Required for Failure-to-Accommodate Claims

In order to bring a failure-to-accommodate claim under the Americans with Disabilities Act, a plaintiff must establish that she suffered an adverse employment action, according to the U.S. Court of Appeals for the Tenth Circuit. For more, click here.

Employer May Make Benefit Changes In Keeping with Past Practice Under a CBA

The National Labor Relations Board held that an employer did not violate the National Labor Relations Act in unilaterally implementing annual changes to employees’ benefits after the collective bargaining agreement had expired. For more, click here.

Blanket Ban on Insignia Violates the NLRA

The U.S. Court of Appeals for the Fifth Circuit found that an employer’s dress code banning “any type of pin or stickers” violated the National Labor Relations Act. For more, click here.

The Fluctuating Workweek Overtime Calculation Cannot Be Used If Incentives Are Paid

An employer that paid weekly incentives for off-day, offshore, and holiday hours was disqualified from using the fluctuating workweek (FWW) method of calculating overtime, according to the U.S. Court of Appeals for the Fifth Circuit.  For more, click here.

TOP TIP: Workplace Recordings – The Intersection of the NLRA and State Laws

Employers are facing the conundrum of how to deal with workplace recordings. Some states require two-party consent for any recordings, rendering surreptitious recordings illegal. For more, click here.