• OSHA's Electronic Submission Rule Finalized
• New EEOC Guidance on ADA Leave Policies
• Two Rest Periods for the Price of One?
• EEOC Issues Final Rules on Company-Offered Wellness Programs
• AG Sues Corporate Franchisor for Alleged Wage Theft

OSHA's Electronic Submission Rule Finalized

Why it matters

Three years in the making, the Occupational Health and Safety Administration (OSHA) finalized a new rule mandating the electronic submission of injury and illness data from employers. The rules will take effect August 10 with phased-in data submissions beginning in 2017.

The procedure for reporting must be "reasonable," the rule dictated, employers must inform employees of their right to report work-related injuries and illnesses without retaliation, and the obligation to complete and retain injury and illness records remains in force. OSHA intends to publicize the data on its website (after removing all personally identifiable information) to create the "largest publicly available data set on work injuries and illnesses." The final rules also established a new avenue for employees to claim their employer retaliated against them for reporting a work-related injury or illness.

Detailed discussion

After several years, the Occupational Health and Safety Administration (OSHA) has published a final rule requiring covered employers to electronically submit reports of employee illness or injury.

"Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace," Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels said in a statement. "Our new reporting requirements will 'nudge' employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable 'big data' researchers to apply their skills to making workplaces safer."

Specifically, the amendments to 29 C.F.R. Parts 1902 and 1904 mandate that each establishment with 250 or more workers will now submit OSHA 300 Logs, 301 Forms, and 300A summaries each year by uploading them into an OSHA database. The agency defined "establishment" as a single physical location where work is performed, although for businesses where work is performed at multiple locations—such as a construction company—the main office or a branch office will constitute the establishment.

Employers with 20 to 249 employees in specified industries (listed in Appendix A, such as construction, manufacturing, utilities, and agriculture) will be required to submit OSHA 300A summaries electronically.

The electronic system will allow OSHA to compile what it touted as the "largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread, and evaluate the effectiveness of injury and illness prevention activities." Once the forms are submitted, the agency will redact any personally identifiable information before posting it to its website. Employers, workers, and the public will then be able to access the data.

While the rule takes effect in August, electronic submissions will be phased in beginning July 1, 2017. The rule did not do away with an employer's obligation to complete and retain injury and illness records.

The interplay between the final rule and state analogues remains unclear. Pursuant to the final rule, "states that operate their own job safety and health programs, also called OSHA State Plan states, must adopt requirements that are substantially identical to the requirement in this rule within six months after publication of the final rule."

Given the timing of the federal law taking effect and the first deadline for electronic submissions, it is unlikely states will require any similar type of reporting before OSHA.

In addition to the electronic submissions requirements, the final rule addressed concerns about retaliation against employees who report work-related illness or injury. Employers must establish a "reasonable" procedure for workers to report an illness or injury, notify employees about the procedure, and inform them of their right to make such reports. A procedure will not be considered reasonable by OSHA if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

The final rule prohibits retaliation against employees for reporting work-related injuries and illness (regardless of whether the OSHA's electronic submission requirement applies) and created a new avenue for employees to allege such retaliation. Workers will now be able to file a complaint with OSHA compliance personnel, who will investigate and determine if the employer violated the anti-retaliation provisions.

If OSHA determines a violation occurred, the agency will issue a citation that could require a range of employer actions from reinstating a worker to providing back pay to removing discipline from an employee's file. Employers may challenge an alleged violation with an appeals process to an administrative law judge and the Occupational Safety and Health Review Commission.

To read the DOL's final rule, click here.

New EEOC Guidance on ADA Leave Policies

Why it matters

In response to the increase in allegations of Americans with Disabilities Act (ADA) violations, the Equal Employment Opportunity Commission (EEOC) released a new resource document entitled "Employer-Provided Leave and the Americans with Disabilities Act." The overarching message from the guidance: absent an undue hardship, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it.

To demonstrate the agency's intent to enforce ADA claims related to leave policies, a few days later the EEOC announced an $8.6 million deal with Lowe's retail stores to settle a lawsuit alleging the company engaged in disability discrimination based on inflexible leave policies. According to the agency, the national home improvement chain violated the ADA and engaged in a pattern and practice of discrimination against people with disabilities by failing to provide them with reasonable accommodations and firing them when their medical leave exceeded the company's 180-day maximum leave policy. Lowe's will also retain a consultant with ADA experience to review and revise company policies as appropriate, implement ADA training for supervisors and staff, develop a centralized tracking system for employee requests for accommodation, and maintain an accommodation log. "This settlement sends a clear message to employers that policies that limit the amount of leave may violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit," EEOC General Counsel David Lopez said in a statement. "We hope that our efforts here will encourage employers to voluntarily comply with the ADA."

Detailed discussion

Citing an increase in the number of charges filed alleging disability discrimination in violation of the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) published a new resource document for employers.

"Employer-Provided Leave and the Americans with Disabilities Act" is based on the agency's belief that "[a]n employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer."

This principle applies to policies that limit the amount of leave employees can take or require a worker to be 100 percent healed or able to work without restrictions before they can return to work, the EEOC explained.

The guidance addressed several issues regarding ADA leave, beginning with equal access to leave. "Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees," the EEOC wrote. "If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to disability."

Employers are permitted to have policies that require all employees to provide a doctor's note or other documentation to substantiate the need for leave, the agency noted, and reasonable accommodation does not require an employer to provide paid leave.

But granting leave as a reasonable accommodation requires employers to change the way things are customarily done to enable employees with disabilities to work, the guidance said. So even where an employer's leave policy does not cover employees until they have worked for six months or provide leave for those who work fewer than 30 hours per week, the employer must provide unpaid leave as a reasonable accommodation for a disabled employee in these circumstances unless it can show that providing the unpaid leave would cause undue hardship.

The interactive process requires communication between the employer and employee, the EEOC said, and generally the information discussed should include the specific reason(s) the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end.

During leave, the interactive process may continue, the agency added, particularly if the leave request did not specify an exact return date or if the employee needs additional time off. Employers may not ask the employee to provide periodic updates if a fixed return date has been provided but "may reach out to an employee on extended leave to check on the employee's progress," the EEOC said.

Maximum leave policies are problematic with ADA compliance, the agency indicated, and while employers are allowed to have such policies, "they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship."

For example, if an employer covered by the Family and Medical Leave Act (FMLA) grants employees a maximum of 12 weeks of leave per year and an employee uses the full 12 weeks for his/her disability but needs five additional weeks of leave, the employer must provide the time as a reasonable accommodation unless it can show that doing so will cause an undue hardship. "The Commission takes the position that compliance with the FMLA does not necessarily meet an employer's obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship," the EEOC said.

Employers who use form letters may wish to modify them, the agency suggested, to let employees know that if they need additional unpaid leave as a reasonable accommodation for a disability, they should ask for it as soon as possible so that the employer can consider granting an extension without causing undue hardship.

The guidance also discussed return to work issues. One hundred percent healed policies violate the ADA if the employee can perform his/her job with or without reasonable accommodation unless the needed accommodation would cause an undue hardship, the EEOC said, and an employer will similarly run afoul of the statute with a policy requiring the employee be free from medical restrictions upon return unless the individual poses a "direct threat" of harm to him-/herself or others.

The agency recognized that reassignment may be necessary upon an employee's return to work (if the disability prevents him from performing one or more essential functions of the current job, for example) and that employers must place the worker in a vacant position for which he/she is qualified without requiring the employee to compete with other applicants for open positions.

Finally, the EEOC provided some insight into what constitutes an "undue hardship." The determination occurs on a case-by-case basis, with factors including the amount and/or length of leave required, the frequency of leave, whether any flexibility exists with respect to the days on which leave is taken, whether the need for intermittent leave on specific dates is predictable or unpredictable, the impact of the employee's absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner, and the impact on the employer's operations and its ability to serve customers or clients appropriately and in a timely manner, which takes into account the size of the employer.

An employer may also take into account leave already taken, whether pursuant to a workers' compensation program, the FMLA or similar state or local leave law, an employer's leave program, or leave provided as a reasonable accommodation.

So if an employee has exhausted his FMLA leave but requires 15 additional days of leave due to his/her disability, the employer may consider the impact of the 12 weeks of FMLA leave already granted—and the additional impact on operations—to determine whether an undue hardship exists in granting three more weeks of leave, the agency said.

To read the EEOC's new guidance, click here.

Two Rest Periods for the Price of One?

Why it matters

Can an employer combine two 10-minute rest breaks for a single, 20-minute rest period? Maybe, a California appellate panel has ruled. The management at a metal finishing shop combined the two required breaks for a single, longer rest period. A former employee filed suit, alleging that the practice violated Wage Order No. 1-2001, which states that employee rest periods should occur in the middle of each work period "insofar as practicable."

A trial court granted the employer's motion for summary judgment but the appellate court reversed. Employers should implement the specified rest break schedule absent an adequate justification of why such a schedule is not capable of being put into practice, or is not feasible as a practical schedule, the court said, and a departure is permissible only when the departure "will not unduly affect employee welfare" and "is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule." Because the evidence supporting the reasons for the combined break was in dispute, the court said the case should move forward.

Detailed discussion

A family-owned metal finishing company in business since 1962, E.M.E. Inc. has a single facility located in Compton with 125 employees. The employer operated on two shifts: from 7:30 a.m. to 4 p.m. and from 3:30 p.m. to 11:30 p.m. During the first shift, employees received a 20-minute rest break at 9:30 or 9:40 a.m. and a 30-minute meal break at 12:30 p.m. During the second shift, workers received a 30-minute meal break at 5:30 p.m. and a 20-minute rest break at 8 p.m.

Juan Rodriguez worked for the company between 1995 and 2013, when he filed suit. He alleged E.M.E. violated the state Labor Code, unfair competition law, and Wage Order No. 1-2001 by failing to provide meal and rest breaks when it compelled employees to take a single, combined rest period.

A trial court judge granted summary judgment in favor of the employer and Rodriguez appealed. Considering whether Wage Order 1-2001 permits an employer to combine the rest periods required during an 8-hour work shift and provide them before or after the meal break, the appellate panel said such a practice was not prohibited. However, because of disputed facts in the case against E.M.E., the court remanded the suit.

Wage Order 1-2001, applicable to the manufacturing industry, states in section 11(A) that employees working for a period of more than five hours must be provided with a meal period of "not less than 30 minutes." In addition, section 12(A) provides that "Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof."

The appellate panel relied heavily upon the California Supreme Court's 2012 decision in Brinker Restaurant Corp. v. Superior Court, which examined the timing of meal and rest breaks under a Wage Order with identical provisions. The Brinker court noted "that the only constraint in section 12(A) … was that 'rest breaks must fall in the middle of work periods 'insofar as practicable,'" the panel wrote. "The court stated: 'Employers are … subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. At the certification stage, we have no occasion to decide, and express no opinion on, what considerations might be legally sufficient to justify such a departure.'"

Taking up the task itself, the appellate panel said the phrase "insofar as practicable" "directs employers to implement the specified rest break schedule absent an adequate justification why such a schedule is not capable of being put into practice, or is not feasible as a practical schedule."

"[W]e conclude that a departure from the preferred schedule is permissible only when the departure (1) will not unduly affect employee welfare and (2) is tailored to alleviate a material burden that would be imposed on the employer by implementing the preferred schedule," the court wrote, adding that the Wage Order must be construed in a manner that promotes its "protective intent" to safeguard employee health and welfare. "Furthermore, a departure from the preferred schedule that is merely advantageous to the employer cannot satisfy the requirement stated in section 12(A) … as the existence of such an advantage does not, by itself, show that the preferred schedule is not capable of being put into practice. For this reason, the departure must be predicated on facts demonstrating that the preferred schedule would impose a material burden on the employer, and that the departure is necessary to alleviate such burden."

Turning to the dispute between Rodriguez and E.M.E., the court said the employer provided sufficient evidence to support its departure from the preferred schedule. The consolidated rest breaks were not detrimental to employees and—as demonstrated by the affidavits from current employees—preferred by the workers, who stated they liked having a single, longer rest period. In addition, the schedule enabled the employer to avoid material economic losses attributable to its production activities.

Although the court said E.M.E.'s showing would suffice to support its departure from the preferred schedule, Rodriguez raised triable issues precluding summary judgment. Based on his experience, the plaintiff argued that no material amount of production time was consumed before or after rest breaks and that E.M.E.'s evidence failed to demonstrate the exceptional circumstances required to justify the placement of both rest breaks before the meal break because the Wage Order did not impose a burden on the employer.

"Although we agree that the wage order does not conclusively bar combined rest breaks, E.M.E. and amici curiae have identified no authority establishing the permissibility of E.M.E.'s combined rest break as a matter of law," the panel added, reversing summary judgment in the defendant's favor on the rest break claims.

To read the opinion in Rodriguez v. E.M.E., Inc., click here.

EEOC Issues Final Rules on Company-Offered Wellness Programs

Why it matters

In final rules issued by the Equal Employment Opportunity Commission (EEOC), the agency described how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from workers and their spouses. Wellness programs that are part of a group health plan and ask questions about employees' health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage pursuant to the final ADA rule; the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage under the final GINA rule. Employers are prohibited from offering incentives in exchange for current or past health status information of employees' children or in exchange for specified genetic information of an employee, spouse, or child, and information from wellness programs may be disclosed to employers only in aggregate terms, the EEOC said. Set to take effect in 2017, the final rules apply to all workplace wellness programs.

Detailed discussion

Intended to provide greater certainty to employers about the application of the Americans with Disabilities Act (ADA) and the Genetic Information Nondisclosure Act (GINA) to workplace wellness programs consistent with the Health Insurance Portability and Accountability Act (HIPAA), the Equal Employment Opportunity Commission (EEOC) published a pair of final rules, one for each statute, as well as additional guidance for small businesses and Q and A documents.

An employer-sponsored wellness program is permissible if it is "reasonably designed to promote health or prevent disease" and employee participation is "voluntary," meaning employers do not require any employees to participate, do not deny workers who elect not to participate access to health coverage or prohibit the choice of certain plans, and do not "take any other adverse action or retaliation against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes."

The final ADA rule establishes that wellness programs that are part of a group health plan and ask questions about employees' health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage (including the employee's and employer's contribution). Employers must give participating employees a notice about what information will be collected as part of the program, with whom it will be shared, and for what purpose, as well as how the information will be kept confidential and the limits placed on disclosure.

Similarly, the final GINA rule provides that the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage. Incentives in exchange for the current or past health status information of employees' children or in exchange for specified genetic information of an employee, spouse, or children are not permitted. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members, the EEOC noted.

If the wellness programs allows both the employee and the spouse to participate, the 30 percent threshold applies to the employee and spouse individually. For example, if an employee is enrolled in health insurance through the employer with a self-only option for $6,000, the maximum incentive the employer can offer for a wellness program would be $1,800 for the employee and $1,800 for the spouse.

Smoking cessation programs received specific attention from the EEOC in the final rules. Programs that merely ask employees whether they smoke are treated differently than programs that require workers to be tested for nicotine use. Those that ask about use are not considered employee health programs that include disability-related inquiries or medical examinations and, therefore, the 30 percent incentive limit does not apply. Instead, the employer may offer an incentive up to 50 percent of the costs of self-only coverage, in line with HIPAA's regulations. A program that includes biometric screening or other medical procedures to test for the presence of nicotine is stuck under the 30 percent incentive cap, however.

Both rules require that information from wellness programs may be disclosed to employers only in aggregate form and prohibit employers from requiring employees or family members to agree to the sale, exchange, transfer, or other disclosure of their information in order to participate in a wellness program or receive an incentive.

The final rules—both of which take effect on the first day of the plan year that begins on or after January 1, 2017—apply to all workplace wellness programs, the EEOC said, including those in which employees or their family members may participate without enrolling in a particular health plan.

To read the final ADA rule, click here.

To read the final GINA rule, click here.

AG Sues Corporate Franchisor for Alleged Wage Theft

Why it matters

New York Attorney General Eric T. Schneiderman continued his hard line against wage theft, seeking to hold the corporate entity of Domino's Pizza liable for the computer system used by franchise locations that allegedly systemically undercounted the hours worked by employees. The result of a multi-year investigation, the lawsuit asserts that Domino's is responsible for the underpaid wages because of its "micromanagement" of franchise locations across the state.

"At some point, a company has to take responsibility for its actions and for its workers' well-being," Attorney General Schneiderman said in a press release about the case. "We've found rampant wage violations at Domino's franchise stores. And, as our suit alleges, we've discovered that Domino's headquarters was intensely involved in store operations, and even caused many of these violations. Under these circumstances, New York law—as well as basic human decency—holds Domino's responsible for the alleged mistreatment of the workers who make and deliver the company's pizza. Domino's can, and must, fix this problem." Domino's released a statement in response to the action. "We were disappointed to learn that the attorney general chose to file a lawsuit that disregards the nature of franchising and demeans the role of small business owners instead of focusing on solutions that could have actually helped the individuals those small businesses employ," the company said.

Detailed discussion

Wage theft has been at the top of the agenda for New York Attorney General Eric T. Schneiderman for several years. Since he took office in 2011, Schneiderman has secured more than $26 million for almost 20,000 workers, and has previously targeted the fast food industry, even achieving a criminal conviction against a Papa John's franchise owner for wage theft.

But in a new case, AG Schneiderman seeks to hold the franchisor liable for the wage and hour infractions of the store locations. According to the complaint filed by the AG's Office against Domino's Pizza, Inc., Domino's Pizza LLC, and Domino's Pizza Franchising, workers at ten outlets in New York were underpaid by at least $565,000.

The suit is the first time the AG has tried to hold a fast food corporation liable as a joint employer for labor violations at franchise locations.

Domino's urged franchises to use payroll reports from the company's PULSE computer system despite having knowledge that the program under-calculated employees' gross wages, the AG said. Although the corporate franchisor typically made updates to the PULSE system each year, Domino's elected not to fix the flaws that resulted in underpayments to workers, calling it a "low priority," Schneiderman alleged.

Further demonstrating that Domino's is a joint employer: the company "micromanaged" employee relations at franchisee stores, the AG said. The corporate franchisor directed franchisees to discipline and/or fire specific employees, dictated staffing and scheduling requirements as well as store hours, and imposed "exacting" requirements for attire, appearance, grooming, and conduct of franchisee-owned store employees, the lawsuit alleged. For example, Domino's exerted its control by placing restrictions on the color of undershirts, permissible tattoos, and the diameter of earrings, the regulator asserted, and enforced the standards in inspections.

The Attorney General's complaint also alleged that Domino's pushed an anti-union policy upon its franchisees and placed conditions upon the purchase of a franchisee store.

Multiple wage and hour violations are cited in the complaint, including the failure to pay overtime, abuse of the tip credit, failure to reimburse employees for all expenses related to the use of their cars or bicycles for deliveries, and subminimum wages. The AG said internal documents discovered during the investigation demonstrated that over a two-year period, 78 percent of New York Domino's franchisees listed rates for at least some employees below the required minimum wage and 86 percent listed rates below the required overtime rate.

The suit named three franchisees along with the corporate franchisor. In addition to seeking a determination that Domino's is a joint employer of the workers at the 10 stores named in the lawsuit, the AG requested an accounting to determine the full amount of restitution owed to workers and the imposition of a monitor to ensure future compliance.

The multi-year investigation into the world's second largest pizza restaurant chain has already yielded multiple actions. Schneiderman's office has settled 12 cases with franchisees for a total of $1.5 million to date.

To read the complaint in New York v. Domino's Pizza, click here.