During a week in which Washington D.C. experienced a historic visit from the Pope, those in the government contractor community had a celebration of their own – the 50th Anniversary of the signing of Executive Order 11246. The celebrations kicked off on September 24, 2015 – the actual 50th anniversary – with a celebratory reception hosted by The OFCCP Institute. Numerous former OFCCP Directors joined the celebration and shared memories of their time with the Agency.
Eleventh Circuit Rejects Airline Deregulation Act Preemption Challenge To Living Wage Ordinance
Courts continue to wrestle with preemption issues, the tension between sweeping federal laws purporting to regulate an industry or industries and laws enacted at the local level, such as labor laws impacting labor costs. In the most recent example, the Court of Appeals for the Eleventh Circuit rejected a cargo airline’s argument that the Airline Deregulation Act of 1978’s mandate that states make no law impacting the “price, route or service of an air carrier,” preempts Miami-Date County’s living wage ordinance as applied to such carriers. Amerijet Int’l v. Miami-Dade County, 2015 U.S. App. LEXIS 16700 (11th Cir. 2015).
Reasonable Suspicion Alcohol Test of Employee Was Justified After Bar Fight and Diagnosis of Alcoholic Pancreatitis
Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).
OSHA Promises Silica Rule Soon, but Its Future Remains Uncertain
The Occupational Safety and Health Administration has pledged to release a comprehensive final rule on crystalline silica by the end of the current Administration, in January 2017.
Rescue and Recovery Work Necessary for Valid MSHA ‘j’ Order, Commission Rules
Mine regulators have no statutory authority to issue emergency “j” orders for immediately safeguarding people following a mine accident unless rescue and recovery is involved, the Federal Mine Safety and Health Review Commission has ruled. Section 103(j) of the Mine Act gives the Mine Safety and Health Administration authority to take appropriate action to assure personnel safety after an accident “where rescue and recovery work is necessary.”
Applying Integrity Staffing, Ninth Circuit Holds that Firefighters’ Time Moving Gear to and from Temporary Assignments is Not Compensable Under the FLSA
Applying the Supreme Court’s unanimous decision in Integrity Staffing Solutions, Inc. v. Busk, the United States Court of Appeals for the Ninth Circuit recently ruled that firefighters are not entitled to compensation under the FLSA for time spent moving certain necessary gear to and from temporary work assignments at fire stations other than their “home” stations. Balestrieri v. Menlo Park Fire Prot. Dist., 2015 U.S. App. LEXIS 15785 (9th Cir. Sept. 4, 2015).
Wearables, Wellness and Privacy
Bloomberg BNA (subscription) recently reported that this fall the Center for Democracy & Technology (CDT) will be issuing a report on Fitbit Inc.’s privacy practices. Avid runners, walkers or those up on the latest gadgets likely know about Fitbit, and its line of wearable fitness devices.
Georgia’s Garnishment Law on Shaky Ground
Georgia’s garnishment statute is unconstitutional, a federal judge in Atlanta has held in Strickland v. Alexander, No. 1:12-CV-02735-MHS (N.D. Ga. Sept. 8, 2015), putting the future of state garnishment cases in doubt.
Uber Litigation Continues To Serve As Legal Lightning Rod for “On Demand” Economy
Cases challenging the independent contractor status of certain service providers under the wage-and-hour laws are likely to continue in the near future due to the difficulties in applying the law to complex factual patterns. The Department of Labor recently provided additional guidance for determining contractor status in the form of an Administrator’s Interpretation (and the National Labor Relations Board also weighed in, modifying its view of “joint employment” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015)). A recent case involving Uber drivers may be a bellwether. O’Connor, et al. v. Uber Technologies, Inc., N.D. Cal. C-13-3826.
The Culling Fields: Date Range and Custodian Culling
This is part Six of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts one, two, three, four and five before this one.
Pre-Offer Drug Tests Were Not Impermissible Medical Examinations Under The ADA, Court Holds
Pre-offer drug tests to determine the use of illegal drugs did not violate the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on September 15, 2015. EEOC v. Grane Healthcare Co. et ano, CV No. 3:10-250 (W.D. Pa. Sept. 15, 2015).
Retailer’s Guide to Defending against Workplace Violence
Violence is a leading cause of workplace deaths in the last 15 years and causes 48 percent of worker deaths in the retail industry, according to the Bureau of Labor Statistics.
Sales May Sizzle, But Keep Employees Cool
When the outdoor temperature tops 80 degrees Fahrenheit, the cool, air-conditioned comfort of a retail store may be a refuge for salespeople, but it is easy to forget that many other retail employees (including truck drivers, loaders, mechanics, janitors, maintenance personnel, cart attendants, and warehouse crews) may be feeling the heat in their workplaces.
Pay Transparency Final Rule Summary: Executive Order 13665 – Prohibitions Against Pay Secrecy Policies and Actions
On September 11, 2015, OFCCP published the Final Rule implementing Executive Order 13665 – Prohibitions Against Pay Secrecy Policies and Actions. The Final Rule will be effective for contracts or subcontracts over $10,000 entered into or modified after January 11, 2016.
Proposed ‘Ban the Box’ Legislation Would Limit Criminal History Inquiries by Federal Contractors
Bills pending in both houses of Congress would make it unlawful for most federal contractors to request a job applicant, whether orally or in writing, to disclose criminal history record information before the applicant has received a conditional offer of employment.