The Mine Safety and Health Administration may continue phasing-in its new coal dust rules, a three-judge panel of the Eleventh Circuit Court of Appeals has decided, relying on what it called a “holistic interpretation” of the Mine Act to uphold MSHA’s new rules. National Mining Association, et al. v. Sec’y of Labor, et al., No. 14-11942 (Jan. 25, 2016). The rule expands sampling requirements, changes sampling methods and tools, lowers permissible exposure limits, and requires immediate corrective actions by mine operators.
Articles on U.S. Labor, Employment, Benefits & Immigration Law
OSHA publishes New Whistleblower Investigations Manual
On January 28, 2016, OSHA released an updated Whistleblower Investigations Manual (OSHA Instruction CPL 02-03-005) to replace the manual dated April 21, 2015. The new manual makes three significant changes:
Identity Theft is the First of the IRS’ “Dirty Dozen” Tax Scams of 2016
Each year at the beginning of tax season, the IRS releases the “Dirty Dozen,” a list of twelve tax scams to be mindful of when individuals are filing their taxes. This list is something to consider sharing with colleagues or friends within your organization.
What are the Short- and Long-Term Employment Law Implications of Supreme Court Justice Antonin Scalia’s Death?
For the last three decades, Justice Antonin Scalia served as a stanch and reliable conservative voice on the U.S. Supreme Court. While his rulings could be controversial at times, he remained widely liked and respected, even among the more liberal members of the Court. His unexpected death over the weekend leaves many in mourning. It also leaves many wondering: what happens next?
Retaliation and Disability Charges are on the Rise, According to EEOC Litigation and Charge Statistics for FY 2015
The number of charges filed with the Equal Employment Opportunity Commission (EEOC) is once again climbing, according to newly released litigation and enforcement statistics for FY 2015. During the past fiscal year, 89,385 charges were filed with the agency, up slightly from the 88,778 charges filed the previous year. The largest number of charges filed with the agency since FY 1997—the first year the agency started compiling such data—is 99,947 charges filed in FY 2011. Charge numbers had steadily declined since that time until this year.
IRS Provides Welcome Guidance on Mid-Year Amendments to Safe Harbor 401(k) Plans
The IRS recently issued Notice 2016-16 (the “Notice”), which permits most mid-year amendments to safe harbor 401(k) plans. This is welcome news to sponsors of safe harbor 401(k) plans who, prior to the issuance of the Notice, faced uncertainty over whether any mid-year changes to their plan would invalidate the plan’s safe harbor status.
Can Employees Be Disciplined When They Exceed the Frequency or Duration on Their FMLA Medical Certification?
One of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.
The Status of the EU-U.S. Privacy Shield
As we previously reported, the EU and U.S. reached agreement last week on the EU-U.S. Privacy Shield to replace the invalidated EU-U.S. Safe Harbor Program for transatlantic data transfers. While the announcement of the Privacy Shield is a relief to the thousands of companies who relied on the Safe Harbor Program, details remain unclear.
Joint Employment Challenges Continue in 2016
The legal concept of “joint employment” exists when a person is employed by two or more entities, such that the employers are responsible, individually and jointly, to the employee for compliance with a particular statute or regulation. While the legal theory is not new, the increased attention and expansive interpretation it has received over the past year are.
EEOC’s Proposed (Anti) Retaliation Guidance: Is Your Whistleblower Response System Ready?
The EEOC’s January 21, 2016 “Draft Proposed Enforcement Guidance on Retaliation and Related Issues” continues the pattern of governmental agencies probing deeply into your whistleblower program. Whether or not the guidance remains exactly as drafted, it is a window into the EEOC’s view of an effective anti-retaliation system. And its message is clear: employers need an integrated response system that involves supervisors and managers throughout the process, removes psychological deterrents to reports of retaliation, responds promptly and expertly to allegations, and avoids retaliation during the investigation and afterward.
PERM: Where Details Matter
In 2010, Abundant Life Evangelical Community filed a PERM labor certification application with the US Department of Labor on behalf of an individual to work as an administrative assistant. PERM is the process most employers use to seek permanent residency or a green card for an employee. PERM involves testing the labor market or seeking qualified US citizen or other employment authorized workers. If no qualified workers are found, the employer files the PERM application with the DOL requesting certification.
Wrongfully Reviewed? Risks of Performance Review Process
Performance reviews are a necessary step in the path to ensuring a team of productive employees. However, as illustrated by a series of recent lawsuits filed by Yahoo employees against the internet giant, performance reviews are not without risks to the employers who administer them. In one such suit, an employee alleges that he and approximately 600 other Yahoo employees were unfairly fired based upon an allegedly unfair performance evaluation system, and were terminated without the notice required by federal and state laws, including the Worker Adjustment and Retraining Notification Act (WARN).
EU-US Privacy Shield May Provide Guidance for Transatlantic Data Transfers
The decision of the Court of Justice of the European Union (CJEU) to invalidate Safe Harbor in October 2015 sent shockwaves throughout the international business community. Safe Harbor was a certification mechanism that allowed personal data to be transferred across the Atlantic while guaranteeing that the personal data would be subject to the same protections as under EU law. More than 4,000 US based companies used this transfer mechanism. When the CJEU invalidated Safe Harbor, multinational companies were left wondering how they could now validly transfer employee information to their US affiliates.
Former Employee’s SOX Whistleblower Claim Fails, Federal Appeals Court Rules
Finding a former employee failed to “put up” sufficient facts to support the nexus between his termination and whistleblower activity protected by the Sarbanes-Oxley Act (SOX), the federal appeals court in Philadelphia, in effect, has told him to “shut up,” affirming summary judgment unanimously in favor of the employer. Wiest et al. v. Tyco Electronics Corp., No. 15-2034 (3d Cir. Feb. 2, 2016). Moreover, the Court clarified that a “contributing factor” to a SOX retaliatory firing must affect the outcome of the adverse employment decision.
Congress Reacts to Obama Administration Moves on Joint Employer Liability
The Republican leadership of a congressional oversight committee has started investigating inter-agency communications in response to the Obama Administration’s attempts to hold business franchisors accountable for labor law violations of their franchisees.