Monthly Archives: June 2016

June 28, 2016

MSHA Proposes Rule On Workplace Examinations At U.S. Metal and Nonmetal Mines

By Matt Linton Shutterstock_152684429gravel mine

 

The Department of Labor’s Mine Safety and Health Administration (MSHA) recently proposed a rule changing its standards for metal and nonmetal workplace examinations. Under the Federal Mine Safety and Health Act of 1977, mine operators must take actions to prevent conditions and practices that could cause injuries, illnesses, and death. Believing that the mining industry needs to improve mine site examinations to help identify and fix hazards, the proposed rule would require:

  • a competent person to examine the working place before miners begin work in that location;
  • mine operators to promptly notify miners of any conditions that may adversely affect their safety or health;
  • a competent person to sign and date the examination record before the end of each shift, with the examination record including a description of locations examined, conditions found and corrective actions taken; and
  • records to be made available for inspection by MSHA and miners’ representatives, with operators required to provide a copy of the records upon request.

Seeking To Eliminate Preventable Deaths

According to MSHA, 122 miners died at metal and nonmetal mines from January 2010 through mid-December 2015. The majority of those deaths, some 60 percent, were linked to violations of “Rules to Live By” standards, which are known to most frequently cause mining deaths.

“We believe that many of these fatalities could have been prevented with better working place examinations,” said Joseph A. Main, assistant secretary of labor for mine safety and health.  See MSHA’s full press release.   “MSHA has proactively provided notices to the mining industry on the need to improve mine site examinations, but now the time has come to require better, more effective examinations.” 

Changes Would Enhance Existing Working Place Exams 

MSHA has existing standards for working place examinations at 30 CFR 56.18002 and 30 CFR 57.18002, but MSHA believes that those standards require the enhancements articulated in the proposed rule to minimize the risk of preventable deaths. For example, under the current standards, a working place examination may be conducted at any time during the shift, rather than before the shift begins. MSHA also believes that the existing standards do not require mine operators to promptly notify minors of adverse conditions, do not address what must be included in the records of workplace examinations, and do not require mine operators to make its examination records available to miners’ representatives. Read more >>

June 24, 2016

Obama’s Immigration Policy Blocked Due to Equally Divided Supreme Court

Tsai_RBy Roger Tsai

A 4-to-4 decision by the Supreme Court on a challenge to President Obama’s immigration reform policy means that the policy continues to be blocked, disappointing five million undocumented immigrants who had hoped to stay and work in our country. The failure of the Court to come to a majority decision leaves a nationwide injunction by a Texas court in place, preventing implementation of the new immigration policy. United States v. Texas, 579 U.S. ___ (2016). The short nine word opinion fails to provide any reasoning for the Court’s decision or establish clear precedent.

DACA and DAPA Programs

At issue is President Obama’s November 2012 and 2014 immigration programs that would allow more undocumented immigrants to apply for the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The pre-existing DACA program granted temporary two-year work permits to 1.2 million young people brought to the U.S. by their parents and remains unaffected. The administration’s new immigration policy sought to expand the DACA program, which allows eligible young people to apply for work permits and deportation deferrals, by increasing the deferral period from two to three years and eliminating the requirement that applicants be under 31 year old. Under the new DAPA policy, which applies to parents of children who are U.S. citizens or lawful permanent residents, undocumented parents would be permitted to stay in the United States for three years and work here legally.

States Sued To Stop Obama’s Immigration Reforms 

Before the President’s policy could go into effect, Texas and twenty-five other states went to court and got an injunction preventing implementation of the policy. The states asserted that the Obama administration did not have the authority to issue new immigration policy, arguing that sweeping immigration policy of this sort must be passed through Congress, not by the executive branch. In early 2015, a federal court in Texas issued an injunction blocking the enactment of the new policy while the legal issues were resolved. An appeals court upheld that ruling, leading to the appeal to the Supreme Court.

Next Steps For Immigration Reform

The federal government has the option of filing a rehearing petition in the Supreme Court, hoping for a different result if, and when, a ninth Justice is seated on the Court. Absent that, the case essentially goes back to the federal district court in Texas for further proceedings on the actual claims in the case. Because that judge had issued the preliminary injunction believing that the states would prevail on their claims, the government will have an uphill battle getting its policy through. In the meantime, the immigration reform is blocked, leaving an estimated five million undocumented workers and their children without relief.

Click here to print/email/pdf this article.

June 23, 2016

Affirmative Action Policy Upheld By Supreme Court

Huntington_CBy R. Calder Huntington

Race may be taken into account when public universities and colleges admit students, ruled the U.S. Supreme Court today. For the second time, the Court was asked to decide whether the University of Texas at Austin’s admissions policy, which uses a variety of affirmative action factors to increase the diversity of its student population, violates the Equal Protection Clause of the Constitution. In a 4-to-3 decision (with Justice Kagan taking no part in the decision), the Court ruled that the race-conscious admissions program in question is lawful under the Equal Protection Clause. Fisher v. University of Texas at Austin, 579 U.S. __ (2016).

White Applicant Denied Admission Challenged Policy

Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin, sued the University alleging that its use of racial preferences in undergraduate admissions decisions is unconstitutional. She asserted that by including race in its admissions decisions, the University disadvantaged her and other Caucasian applicants.

The District Court in Texas that considered Fisher’s claims ruled in favor of the University, and the Fifth Circuit Court of Appeals agreed. Fisher appealed to the Supreme Court and in 2013, the Court kept her claims alive by sending them back to the Fifth Circuit so that the University’s admissions policy could be evaluated under the proper strict scrutiny standard. The Fifth Circuit reexamined the policy but came up with the same result, ruling in favor of the University. Fisher appealed to the Supreme Court again.

Court Finds Compelling Interest In Diversity of Students

In Fisher I, the Court ruled that the University’s affirmative action process, in which race was only one factor in assigning a numerical admissions score, needed to further a constitutionally permissible and substantial purpose or interest in order to meet the strict scrutiny standard. In today’s decision, the Court found that the University’s desire to provide its students the educational benefits that flow from having a diverse student body was a compelling interest sufficient to overcome the strict scrutiny standard.

Fisher had argued that the University failed to state more precisely what level of minority enrollment would constitute a “critical mass” at which time race would no longer need to be an admissions consideration. The Court rejected Fisher’s argument, stating that the educational benefits promoted by a diverse student body should not be reduced to pure numbers, especially in light of the fact that the University is prohibited from having a quota for minority student enrollment.

The Court also rejected Fisher’s assertion that the University had already achieved “critical mass” of minority enrollment, finding that the University had studied both statistical and anecdotal evidence that showed that race-neutral programs had not achieved its diversity goals. In addition, the Court rejected Fisher’s position that there were other workable race-neutral means of meeting the University’s educational goals.

University Must Continue to Evaluate Use Of Race In Admissions 

Although a slim majority of the Court upheld the University’s ability to use race as a factor in its admissions policy, the Court wrote that the University has a continuing obligation to satisfy the burden of strict scrutiny in light of any changing circumstances. It stated that the University must conduct periodic reassessments of its admissions program and continue to examine data to ensure that “race plays no greater role than is necessary to meet its compelling interest” in promoting the educational benefits advanced by diversity among students. Read more >>

June 21, 2016

Supreme Court Avoids Deciding Whether Car Dealership Service Advisors Are Exempt From Overtime Pay

Mumaugh_BBy Brian Mumaugh

The U.S. Supreme Court rejected the Department of Labor’s (DOL’s) 2011 rule that stated that “service advisors” at car dealerships are not exempt under the Fair Labor Standards Act (FLSA), but declined to take the final step by declaring them exempt under the FLSA. Instead, the Court sent the case back to the Ninth Circuit Court of Appeals to analyze whether service advisors are exempt under the applicable FLSA provision without regard to the DOL’s 2011 regulation.  Encino Motorcars, LLC v. Navarro, 579 U.S.  ___ (2016).

Duties of Service Advisors

At issue are the “service advisors” in a car dealership’s service department. These advisors typically greet the car owners who enter the service area, evaluate the service and repair needs of the vehicle owner, recommend services and repairs that should be done on the vehicle, and write up estimates for the cost of repairs and services before the vehicle is taken to the mechanics for service.

While service advisors do not sell cars, and they do not repair or service cars, they are essential in the sale of services to be performed on cars in the Service Department. Consequently, the issue is whether they fall within the FLSA exemption for salesmen, partsmen, or mechanics. The case before the Court involved numerous service advisors who sued their employer alleging, among other things, that the dealership failed to pay them overtime wages.

DOL Had Flip-Flopped On Exempt Status

In 1970, the DOL took the view that service advisors did not fall within the salesman/mechanic exemption and should receive overtime pay. Numerous courts deciding cases challenging the DOL’s earlier interpretation, however, rejected the DOL’s view and found service advisors exempt. After the contradictory rulings, the DOL changed its position, acquiescing to the view that service advisors were exempt from overtime pay. In a 1978 opinion letter, as confirmed in a 1987 amendment to its Field Operations Handbook, the DOL clarified that service advisors should be treated as exempt.

After more than 30 years operating under that interpretation, the DOL flip-flopped again in 2011. After going through a notice-and-comment period, the DOL adopted a final rule that reverted to its original position that service advisors were not exempt and were entitled to overtime. It stated that it interpreted the statutory term “salesman” to mean only an employee who sells automobiles, trucks, or farm implements, not one who sells services for automobiles and trucks, as service advisors do.

Dealerships were understandably unhappy with the final rule and continued to challenge the DOL’s position in court. As cases went up on appeal, the Fourth and Fifth Circuit Courts of Appeals ruled that the DOL’s interpretation was incorrect. The Ninth Circuit disagreed, ruling instead to uphold the agency’s interpretation. Those contradictory decisions led the Supreme Court to take on the issue in the Encino Motorcars case. Read more >>

June 15, 2016

OFCCP’s New Sex Discrimination Rule Expands Employee Protections Based on Pregnancy, Caregiver Status, and Gender Identity

Biggs_JBy Jude Biggs

This week, the OFCCP updated its sex discrimination guidelines on topics such as accommodations for pregnant workers, gender identity bias, pay discrimination, and family caregiving discrimination. Intended to align the OFCCP’s regulations with the current interpretation of Title VII’s prohibitions against sex discrimination, the new rule will require federal contractors to examine their employment practices, even those that are facially neutral, to make sure that they do not negatively affect their employees. The new rule takes effect on August 15, 2016.

Overview of New Sex Discrimination Rule

The existing OFCCP sex discrimination guidelines date back to the 1970s. The new rule is designed to meet the realities of today’s workplaces and workforces. Today, many more women work outside the home, and many have the financial responsibility for themselves and their families. Many women have children while employed and plan to continue work after giving birth to their children. Women sometimes are also the chief caregivers in their families. The updated regulations are meant to offer women and men fair access to jobs and fair treatment while employed.

The new rule defines sex discrimination to include discrimination on the basis of sex, pregnancy (which includes childbirth or related medical conditions), gender identity, transgender status and sex stereotyping. The rule specifies that contractors must provide accommodations for pregnancy and related conditions on the same terms as are provided to other employees who are similarly able or unable to perform their job duties. For example, contractors must provide extra bathroom breaks and light-duty assignments to an employee who needs such an accommodation due to pregnancy where the contractor provides similar accommodations to other workers with disabilities or occupational injuries.

The new rule also incorporates President Obama’s July 2014 Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity. In addition, contractors that provide health care benefits must make that coverage available for transition-related services and must not otherwise discriminate in health benefits on the basis of gender identity or transgender status.

The rule prohibits pay discrimination based on sex. It recognizes the determination of “similarly situated” employees is case-specific and depends on a number of factors, such as tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. Notably, the OFCCP rule says that employees can be “similarly situated” where they are comparable on some of the factors, but not all of them.

Unlawful compensation discrimination can result not only from unequal pay for equal work, but also from other employer decisions. Contractors may not grant or deny opportunities for overtime work, training, apprenticeships, better pay, or higher-paying positions or opportunities that may lead to higher-paying positions because of a worker’s sex. Employees may recover lost wages for discriminatory pay any time a contractor pays compensation that violates the rule, even if the decision to discriminate was made long before that payment.  Read more >>

June 13, 2016

Repeal of Colorado’s Employment Verification Law

Tsai_RBy Roger Tsai

Effective August 10, 2016, Colorado employers no longer need to complete and maintain the state employment verification affirmation form that ensures that new hires are legally eligible for employment in the United States. Gone too will be the state requirement that employers keep copies of the documents provided by new hires to show their employment eligibility and identity in support of the I-9 verification process. Signed into law by Governor John Hickenlooper on June 8, 2016, House Bill 16-1114 repeals the state statutory provisions that duplicated much of the employment verification requirements of the federal I-9 forms.

Legislature Relieves Extra Burden on Colorado Employers

In repealing most of section 8-2-122 of the Colorado Revised Statutes, the Colorado legislature acknowledged that the additional state employment verification affidavit and documentation requirements imposed an extra, redundant burden on employers while doing nothing to further prevent unauthorized individuals from working in our state. With the repeal of the additional state verification requirements, the fines and penalties for failure to comply with those requirements under state law are repealed as well.

Section 8-2-122 does not go away entirely, however, as the legislature kept the provision that permits the director of the Colorado Division of Labor to request documentation from employers to show they are in compliance with the I-9 employment verification requirements. The director, or his/her designee, still may conduct random audits of employers to ensure compliance with I-9 obligations. The legislature also maintained the public policy statement that this statute is to be enforced in a non-discriminatory fashion.

What Colorado Employers Should Do

For new employees hired in the next two months, before August 10, 2016, continue to comply with the Colorado employment verification requirements as well as your federal I-9 obligations.

For new employees hired on or after August 10, 2016, you need only comply with your federal I-9 employment verification requirements. That means newly hire employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, and employers must complete Section 2 of the I-9 and examine evidence of both identity and employment authorization within three business days of the employee’s first day of employment. Federal law does not require you to keep copies of the documents provided by the employee to show identity and employment authorization, but employers may choose to retain these documents at their discretion in case an federal immigration audit occurs.

What should you do with the Colorado employment verification affirmation forms and copies of authorization document for your current employees after August 10th?  Your best practice is to continue to keep those forms for the duration of each employee’s employment since the forms were required at the time you hired them. Once an employee is no longer employed by your organization, you may dispose of the Colorado-specific affirmation forms but continue to retain the I-9 forms for one year after the date employment ends, or three years after the date of hire, whichever is later.

Click here to print/email/pdf this article.

June 8, 2016

Prayer Breaks Present Difficult Religious Accommodation Issue

Collis_SBy Steven Collis

Recent news stories describe the tension between Muslim workers seeking multiple prayer breaks at specified times during their workday and employers who need those workers on their assembly lines. Many Muslim employees, including some in Colorado, have walked off the job, claiming their prayer requests have been unlawfully denied. With religious accommodations cases in the news, let’s look at how to handle these tricky situations.

Case In Point

The Muslim faith requires five daily prayers at specific times of the day, such as pre-dawn and sunset. Ariens Company, a manufacturer of lawn mowers and snowblowers, previously had allowed 53 Somali immigrant Muslim production workers to leave their work stations to pray at times required by their faith. In recent months, however, Ariens decided not to accommodate special prayer breaks, requiring instead that workers only leave their assembly-line positions during their two 10-minute breaks per shift. Although Ariens provides prayer rooms that the Muslim employees may use for their daily prayers, it says it costs too much in lost productivity to shut down an assembly line for unscheduled prayer breaks.

In January of this year, the Muslim employees walked off their jobs to protest Ariens’ policy which they say forces them to choose between their religion and their jobs. By February, many had returned to work but seven were fired for continuing to take unscheduled prayer breaks and 14 resigned because of the policy.

The issue has attracted the attention of the news media as well as advocacy groups, including the Council on American-Islamic Relations. The group planned to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that Ariens failed to reasonably accommodate the Somali Muslim workers’ religious beliefs.

Religious Discrimination Prohibited

Title VII and the Colorado Anti-Discrimination Act (CADA) both prohibit employment discrimination on the basis of religion. These laws protect against offering less favorable terms or conditions of employment, such as pay, job assignments, promotions, training, fringe benefits, etc., as well as prohibiting workplace harassment and retaliation based on religion.

Title VII defines “religion” very broadly to include organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, as well as sincerely held religious beliefs that are not part of a formal church or sect. In determining whether a practice or belief is religious under Title VII, the inquiry is whether it involves moral or ethical beliefs as to right and wrong which are sincerely held with the strength of traditional religious views. Title VII also extends workplace protections to those who are discriminated against because they do not believe in religion or a particular set of religious beliefs.

CADA also embraces a broad definition of religion and creed. Colorado’s Civil Rights Commission regulations define religion to mean all aspects of religious observance, belief and practice that need not be part of a particular organized religion, sect, or faith.

Reasonable Religious Accommodations

Under both federal and state law, Colorado employers have a duty to reasonably accommodate the religious practices or observances of employees, unless doing so would result in an undue hardship. An applicant or employee must make the employer aware of the need for an accommodation and that it is being requested due to a conflict between a work policy or requirement and a religious belief or observance.

Common types of religious accommodations that may be required include:

  • scheduling changes, voluntary substitutes, and shift swaps
  • providing an exception to your dress or grooming policy
  • use of the work facility for a religious observance
  • accommodating prayer or other types of religious expression
  • lateral transfer or change of job assignments

Importantly, an employer may not deny employment to an applicant based on an assumption that the applicant will need a religious accommodation. Following the Supreme Court’s 2015 decision in EEOC v. Abercrombie & Fitch Stores, Inc., if an applicant can show that the need for a religious accommodation is a “motivating factor” in the employer’s decision not to hire him or her, the employer violates Title VII, regardless of whether the employer had actual knowledge of the applicant’s religious beliefs or whether he or she will actually need an accommodation. Read more >>

June 6, 2016

Colorado’s New Pregnancy Accommodation Law

By Micah Dawson

Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship. Last week, Colorado Governor John Hickenlooper signed into law House Bill 16-1438 which requires Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The new law, section 24-34-402.3 of the Colorado Anti-Discrimination Act, also prohibits employers from denying employment opportunities based on the need to make a pregnancy-related reasonable accommodation and from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

 Posting and Notification Requirements

The new law imposes posting and notification requirements on Colorado employers. By December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees.

For more information on this new law, read our full post about its requirements here.

Click here to print/email/pdf this article.

June 2, 2016

Colorado Bill Will Give Employees Right to Review Their Personnel Files

Williams_BBy Brad Williams

Most employees in Colorado currently have no legal right to review or copy their personnel files. But that is about to change. A bill awaiting signature by Colorado Governor John Hickenlooper will require private employers to allow employees to inspect and copy their personnel files at least annually upon request. If enacted, House Bill 16-1432 will also grant former employees the right to inspect their personnel files one time after termination of employment. Once signed, the bill will become effective on January 1, 2017.

Employers Must Allow Access to Pre-Existing Personnel Files

Under the bill, employers are not required to create or keep personnel files for current or former employees. They are also not required to retain any particular documents that are – or were – in an employee’s personnel file for any particular period of time. However, if a personnel file exists when an employee asks to inspect it, the employer must allow access.

The inspection should take place at the employer’s office and at a time convenient for both parties. Employers may have a manager of personnel data, or another employee of their choosing, present during the inspection. If an employee asks to copy some or all of his or her file, the employer may require payment of reasonable copying costs. Because the bill is silent regarding whether employees may bring others (such as their lawyers) to inspections, employers should likely limit inspections to only the requesting employees.

What Constitutes a “Personnel File”?

The bill defines a “personnel file” as an employee’s personnel records which are used to determine his or her qualifications for employment, promotion, additional compensation, employment termination, or other disciplinary action. This encompasses both records kept in an actual file, and those employers may collect through reasonable efforts. Put differently, employers cannot avoid the bill’s mandates by simply scattering employee records amongst multiple file cabinets. 

The bill provides numerous exceptions to the documents that must be made available for inspection. The following are not included in the definition of “personnel files” and need not be made available:

  • documents required to be placed or maintained in a separate file from the regular personnel file by federal or state law;
  • records pertaining to confidential reports from previous employers;
  • an active criminal or disciplinary investigation, or an active investigation by a regulatory agency; and
  • information which identifies another person who made a confidential accusation against the requesting employee.

Read more >>