Yet Another Reason to Prohibit Texting While Driving

If there wasn’t reason enough to ensure that employees refrain from texting while driving so that they do not endanger themselves or others, OSHA has reminded employers that the employer has a legal responsibility to prohibit texting while driving. “It is a violation of the OSH Act if employers require workers to text while driving, create incentives that encourage or condone it, or structure work so that texting is a practical necessity for workers to carry out their job.”  OSHA has even published a Distracted Driving Brochure and dedicated a portion of its webpage to the topic.

If companies have not already, this is the perfect opportunity to revisit policies – including the Bring Your Own Device (BYOD) policy, Company Vehicle Policy, and any policy addressing communications.

The OSHA brochure states vehicles should be declared as “text-free zones,” and there should be clear procedures, times, and places for drivers’ safe use of texting (i.e., not while driving).

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The Department of Labor Proposes to Redefine “Spouse” in the FMLA

The Department of Labor has proposed to redefine “spouse” under the FMLA in light of the Supreme Court’s decision in Windsor, striking down DOMA.  The FMLA provides unpaid leave for eligible employees to care for their spouse due to the spouse’s serious health condition, if the spouse is a covered servicemember and has a serious illness or injury, and for a qualifying exigency related to the military service of the spouse.

The old regulations looked to the employee’s state of residency and how a husband or wife is defined pursuant to that state’s law.  The new regulations look to the law of the jurisdiction in which the marriage was entered into (including for common law marriages) as opposed to the law of the state in which the employee resides.  Further, the FMLA now expressly includes same-sex marriages in addition to common law marriages.  At the time of the publication, nineteen states and the District of Columbia extend the right to marry to both same-sex and opposite sex couples.

Therefore, even if the employee lives in a state that does not recognize same-sex marriage, there will be FMLA coverage for the employee, provided that the marriage was legal in the “place of celebration” where it occurred.

The Department proposed to define spouse in the following manner:

Spouse, as defined in the statute, means a husband or wife.  For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State.  This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Once the regulations are final – and assuming no changes are made from the proposed revisions – no forms will be impacted.  Likewise, the Department of Labor’s forms remain optional. That being said, policies and procedures may need to be updated to reflect the current state of the law.

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What About the Volunteers?

It seems like these days we hear all about interns – are they properly classified? Do we have to pay them? But what about volunteers?

If a company or nonprofit has volunteers, it MUST evaluate whether it is properly classifying them (i.e., whether they should be paying them).

Ok, so where do we start? As a general rule, employees may not volunteer services to for-profit, private sector employers. So, if your employee comes to you and says, “I’d love to volunteer at the IT help desk on the weekends. I just love it in that area. I don’t even have to be paid! I will agree, in writing, that I am just a volunteer!” No. They can’t. Therefore, you can’t.

There are three exceptions to the general rule: volunteers for (1) state or local government agencies; (2) private non-profit food banks; and (3) religious, charitable, civic, or humanitarian purposes related to non-profit organizations. Breaking down those three exceptions, it basically means that:

(1) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—

(a) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

(b) such services are not the same type of services which the individual is employed to perform for such public agency.

Public sector employees may volunteer to do different kinds of work in the jurisdiction in which they are employed, or volunteer to do similar work in different jurisdictions.

(2) Then there’s the food bank exception: The term “employee” does not include individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks even if they receive groceries from the food banks.

(3) Last, is the non-profit exception. An individual who performs work (usually on a part-time basis) may be considered a volunteer, provided that individual does not displace employees; performs work for public service, religious, or humanitarian reasons; and such work is performed without promise, expectation, or receipt of compensation for services rendered.

There you have it. A brief digression into the world of volunteers.

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The OSHA Legal Update at the Employment Toolkit Seminar

I recently gave the OSHA Legal Update at the Employment Toolkit Seminar sponsored by Snell. It was a fantastic turnout and, as always, it was great to engage with the audience over breakfast.  We covered a lot of topics, but I thought I would post on a few of the highlights here.

One important thing to keep in mind is when businesses think about OSHA, they oftentimes assume it must be construction-related. That is certainly not the case. Safety and health requirements are imposed on nearly EVERY business and there are detailed statutes and regulations that companies must understand to comply with the law.

So, to start the morning, we chatted for a while about recordkeeping. (I can hear the collective yawn over the internet, but there are actually some interesting points, so read on!)  First and foremost:

All employers covered by the OSH Act must orally report to OSHA the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident within eight (8) hours.

Then, there’s the Forms 300, 300A and 301 for work-related injuries and illnesses. Employers with more than ten employees who are not one of the partially-exempt industries are required to complete these.  One point that is always worth raising is that the company executive who certifies the 300A form must be either: (1) an owner of the company (only if a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.  The 300A form with the data from the previous year has to be posted at the establishment from February 1 to April 30th.

Here are some fun facts that we discussed for those in Arizona.  In FY2013, there were 1,164 inspections, which was a 9.7% increase from FY12.  655 were construction inspections. ADOSH conducted 66 discrimination/retaliation investigations in FY 2013.

**The fun thing about these facts are that I am pretty sure they are right, but I didn’t count these things myself, so I can’t guarantee just about anything.

AND I introduced my brand new Top 10 Ways to Protect the Company During an OSHA Inspection business card.  You can read the Top 10 List here, or if you would rather just have your own Top 10 List on a handy business card, send me an email and I will send some your way.

And, since it’s Arizona and it is already getting hot outside, we talked about heat stress. Here are some points every company should keep in mind:

  • At least one pint of water is needed per hour.
  • Frequent rest periods should be taken in shaded areas.
  • Employees (including all temp employees) need training regarding signs and symptoms of heat stroke.
  • Supervisors need to frequently check employees.
  • Protective clothing that provides cooling should be worn.
I am always looking or excuses to include amazing Arizona photographs. Here is one by the talented Rolf Maeder. You can check out more of his work at http://RolfMaederPhotography.com

I am always looking for excuses to include amazing Arizona photographs on my blog.  All it took was my reference to Arizona to decide that I needed to post yet another one!  Here is a phenomenal picture by the talented Rolf Maeder. You can check out more of his work at http://RolfMaederPhotography.com

 

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The Ninth Circuit Said What About Designating FMLA Leave?

human resources keyboard buttonOk, I will admit it. I have read the FMLA regulations from front to back… several times. An even bigger admission – I actually enjoy reading the regulations.

While managing FMLA leave is not exactly a walk in the park, the regulations are actually quite refreshing. They make sense. They might not answer every question, but they can get you most of the way there if you are willing to spend the time to navigate your way through the tiny print.

Then comes the recently published decision in Escriba v. Foster Poultry Farms, Inc.  This case relates to the appeal of an FMLA interference claim, but deals squarely with the issue of whether an employee may refuse to exercise FMLA rights (i.e., whether an employee can decline to take FMLA leave for absences that are otherwise FMLA-qualifying).  The Ninth Circuit explains that the Act does not expressly state whether an employee may decline or defer exercising FMLA rights.  The regulations, on the other hand, squarely put the requirement on the employer to designate FMLA leave.  This suggests it does not matter whether the employee wants to take FMLA leave or not.  The employer must appropriately designate the leave.  Ahh, I love the regulations.  Seems clear cut, right?  Wrong.

The new wrinkle in it all is that the Ninth Circuit concluded in Escriba that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The Court pointed to an area of the regulations that require an employer to ascertain whether FMLA leave is being sought.  This provision is related to the requirement that the employer has to figure out more about the reason for leave (through the certification process, etc.), and the fact that the employee does not have to specifically walk in to HR and say, “I would like to request FMLA leave, please.”

If you thought managing intermittent leave was difficult, think about the practical problems this creates – an employee can arguably save up FMLA leave and take non-FMLA leave days off that otherwise would have qualified as FMLA leave.  Now, the employee has an FMLA-bank for a rainy day even though that same employee may have just taken a few weeks of sick days.  And, following Escriba, how does an employer enforce its policy that paid days off must be taken concurrently with FMLA leave?  What does a company do when an employee is being wishy-washy about whether he or she wants to take FMLA leave?  Do they now have to engage in a letter-writing campaign to ascertain how the employee feels about FMLA leave on any given day?  This case could result in an employee taking way more leave than he or she is entitled and, for those employees who don’t fully understand the Act, they could potentially lose out on job protection (it’s not absolute, but hey – it helps) if they decline FMLA leave. This truly makes this case a lose-lose for employers and employees.

An employer can still enforce its attendance policy against employees who miss work and decline FMLA coverage.  However, it is murky waters for employers because if a company does not properly designate leave as FMLA qualifying, my reading of the regulations (29 C.F.R. 825.301(a)) is that the employer did not fulfill its duty.**  Now, Escriba teaches that companies must ignore that duty and, in many instances, do what the employee asks.

If a company is within the jurisdiction of the Ninth Circuit – such as Arizona – this case is troubling.

**Although, one colleague recently pointed out that the Ninth Circuit trumps my personal opinion; therefore, I suppose I will leave it at that.

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