Sunday, December 21, 2008

U.S. Department of Labor’s OSHA Reports Successful Enforcement Year In 2008

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) reports that it continued to exceed enforcement goals during Fiscal Year (FY) 2008. In its press release, the agency reports that its emphasis on identifying and eliminating serious safety and health hazards has resulted in an unprecedented 80 percent of all violations issued being in the most serious categories.

Among the DOL’s statistics:

87,697. Number of logged violations of OSHA standards and regulations for worker safety and health in 2008.

67,052. Number of 2008 OSHA violations cited as “serious.”

12. Number of criminal referrals for wrongdoing under the Occupational Safety and Health Act made in 2008.

38,515. Number of OSHA worksite inspections in 2008, surpassing the agency’s goal for the year by 2.4 percent. On average, 4,000 more workplace inspections were completed each year (38,515) between FY 2001-2008 as compared to the prior administration FY 1993-2000 (34,508).

3,800. Number of worksites targeted by the DOL for unannounced comprehensive safety inspections.

“Workplace inspections and issuing citations are a critical part of OSHA’s balanced approach to improving workplace safety, but the real test of success is saving lives and preventing injuries,” said acting Assistant Secretary of Labor for OSHA Thomas M. Stohler in the December 19, 2008 press release. “According to preliminary numbers for 2007, the workplace fatality rate has declined 14 percent since 2001, and since 2002, the workplace injury and illness rate has dropped 21 percent - with both at all time lows. This year’s inspection numbers show that the strategic approach used by OSHA - targeting highest hazard workplaces for aggressive enforcement while also using education, training, and cooperative programs to improve overall compliance - can help achieve significant reductions in workplace injuries, illnesses and fatalities.”

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, December 19, 2008

With Wage Garnishments On The Rise, Employers Must Avoid Retaliatory Discharges

During these tough economic times, as employees fall into debt, employers may see an increase in wage garnishments. Can an employer terminate an employee if the wage garnishments become a nuisance?

The answer is: “It depends.” Federal law, as well as California law, protects employees from termination on account of garnishment for “one indebtedness.” An employer is not restrained from taking adverse action against an employee on account of garnishment for more than one indebtedness.

<u>Federal Law</u>

In the federal Consumer Credit Protection Act, found in Title 15 of the U.S. Code, section 1674 prohibits an employer from discharging any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness. A willful violation of the section may result in criminal penalties, including a fine of up to $1,000, or imprisonment of up to one year, or both.

Although the federal act provides a criminal sanction as the only penalty for violation of the prohibition, some federal courts, including in the 9th Circuit have interpreted the law to allow an employee to file a civil lawsuit seeking back pay.

The term “one indebtedness” refers to a single debt, regardless of the number of levies made or the number of proceedings brought for its collection. A distinction is thus made between a single debt and the garnishment proceedings brought to collect it. A creditor, in seeking to collect a debt, may garnish wages on multiple occasions. Yet because the creditor seeks to collect a single debt, the employee would be protected by the federal law.

According to legislative commentary, if several creditors combine their debts in a single garnishment action, the joint amount is considered as “one indebtedness.” In the same vein, if a creditor joins several debts in a court action and obtains a judgment and writ of garnishment, the judgment would be considered a single indebtedness for purposes of this law. Also, the protection against discharge is renewed with each employment, since the new employer has not been a garnishee with respect to that employee.

<u>California Law</u>

The California Labor Code provides similar protection to employees. Section 2929 provides: “No employer may discharge any employee by reason of the fact that the garnishment of his wages has been threatened. No employer may discharge any employee by reason of the fact that his wages have been subjected to garnishment for the payment of one judgment.”

An employee discharged in violation of California Labor Code Section 2929 may continue to collect wages for up to 30 days after the date of termination.

California law is thus more explicit than federal law with respect to a private right of recovery. The legislative commentary associated with Section 2929 states that the civil penalty is intended to aid in the enforcement of the prohibition against discharge for garnishment of earnings provided by the federal Consumer Credit Protection Act of 1968. The civil penalty under Section 2929 benefits employees, notes the commentary, by providing a more effective method of securing compliance than the criminal sanction provided by the federal law.

Excessive garnishments may subject an employee to discipline. The legislative commentary observes: “Some employers have a rule that the employee will be given warnings for the first two garnishments and will be discharged for the third garnishment in a year. Where at least two of the actions relate to separate debts, discharge would not be prohibited by the law since the warning and discharge would be based on garnishment for more than one indebtedness.”

Employers should thus exercise caution before taking adverse action against an employee whose wages have been garnished.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Sunday, December 14, 2008

California Assembly Leader Makes Employment Law Reform Demands In Midst Of Budget Negotiations

In the midst of the California budget mess that pits Democrats against Republicans, Assembly Republican leader Mike Villines has published a list of demands to be met before GOP politicians agree to discuss new taxes.  As reported by the Sacramento Bee, here, Villines has taken the position that Democrats have to capitulate to GOP demands for the 8-hour work day, meal breaks, looser environmental regulations, permanent budget cuts and a stiff spending cap, among other things.

The Bee quotes Villines: “We think you have to do these reforms first, cuts first and make sure that you’re doing an economic package that puts people back to work,” Villines said. “Then you have a discussion about revenue - and only then.”

The list of employment law reforms are as follows:

REGULATORY CHANGES - EMPLOYMENT LAW FLEXIBILITY

Employee Schedule Flexibility (perhaps referring to the 8 hour overtime rule)

Expanding Health Care Options for Employees (Health savings accounts)

Reducing Unwarranted Litigation (not clear what this means)

Overtime for high way earners (again, not clear)

Meal and Rest clarification (referring to the ensure vs. provide debate)

Eliminate “needs test” to allow more apprenticeships

As pressure mounts to reach a deal, political horse-trading of this sort may take place. Even so, commentators seem to think that employment law reform is wishful thinking.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, December 05, 2008

Department of Labor Publishes Summary of FMLA Amendments

The Department of Labor has published a four page general summary of the new FMLA regulations. The summary provides a good overview of some of the more significant changes.

The summary can be downloaded in pdf format from this link: DOL Summary of New FMLA Regulations

I have also published a somewhat more extensive summary on my website. Please follow this link: Barker Olmsted & Barnier Summary of FMLA Regulations

Posted by
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC