Department of Labor Issues Proposed New Rules Governing Whistleblower Proctections Under the Affordable Care Act

By Douglas L. McSwain

The interim Final Insurance Market Reform Rule under the Affordable Care Act (ACA) came out this past week, and included the employment non-discrimination/whistleblower protection provisions.  This rule could very well become one of the most litigious employment law developments in some time. Employers are prohibited from discriminating against any employee who complains in good faith that an employer is not providing healthcare coverage benefits in compliance with the ACA.  Employers and their insurers are also prohibited from discriminating against employees who participate in any complaint to a state or federal official about the perceived inadequacies of the employer’s coverage of health benefits, and, critically important, against any employee who chooses to go into the insurance exchange to purchase individual health coverage (thereby triggering, for any “large” employer, exposure to a tax penalty if it has failed to provide its employees “affordable” and at least 60% actuarially-valued, coverage). 

Employees may bring a complaint of discrimination (i.e., “blow the whistle” on an employer) within a 180-day limitations period by lodging an oral or informal written complaint (in letter-form or otherwise) with the U.S. Occupational Safety and Heath Administration (“OSHA”).  Under the new rule, reinstatement or front pay is available as remedies, as well as backpay, attorneys fees, expert fees, costs, etc.  If reinstatement is ordered, it must be done immediately pending appeal unless infeasible, in which event, front pay is awardable.  If a prima facie discrimination case is made out by an employee, the employer bears a “clear and convincing burden,” in effect, to disprove that any adverse employment action would have been taken in any event (interesting burden-shift here, and perhaps of questionable validity).  On the other hand, for frivolous or bad faith employee-filings, employers may be awarded up to, but no more than, $1,000 in attorneys fees against a frivolous-filing employee. OSHA filings are exhausted in the administrative setting before an Administrative Law Judge, and appeals are to the U.S. Court of Appeals. However, if a complaint remains unaddressed by OSHA for over 210 days, the case may be initiated by a filing in federal district court, subject to de novo review. 

These are significant developments in employment and employee benefits law. You may find the proposed new employment rules on the DOL’s website regarding the non-discrimination/whistleblower regulations:
http://www.dol.gov/find/20130222/OSHA2013.pdf

OSHA 300 Log Must Be Posted by February 1, 2013 For Many Employers

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2013 to April 30, 2013 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations. 

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code	Industry
525	Hardware Stores
542	Meat and Fish Markets
544	Candy, Nut, and Confectionery Stores
545	Dairy Products Stores
546	Retail Bakeries
549	Miscellaneous Food Stores
551	New and Used Car Dealers
552	Used Car Dealers
554	Gasoline Service Stations
557	Motorcycle Dealers
56	Apparel and Accessory Stores
573	Radio, Television, & Computer Stores
58	Eating and Drinking Places
591	Drug Stores and Proprietary Stores
592	Liquor Stores
594	Miscellaneous Shopping Goods Stores
599	Retail Stores, Not Elsewhere Classified
60	Depository Institutions (banks & savings institutions)
61	Nondepository Institutions(credit institutions)
62	Security and Commodity Brokers
63	Insurance Carriers
64	Insurance Agents, Brokers, & Services
653	Real Estate Agents and Managers
654	Title Abstract Offices
67	Holding and Other Investment Offices
722	Photographic Studios, Portrait
723	Beauty Shops
724	Barber Shops
725	Shoe Repair and Shoeshine Parlors
726	Funeral Service and Crematories
729	Miscellaneous Personal Services
731	Advertising Services
732	Credit Reporting and Collection Services
733	Mailing, Reproduction, Stenographic Services
737	Computer and Data Processing Services
738	Miscellaneous Business Services
764	Reupholstery and Furniture Repair
78	Motion Picture
791	Dance Studios, Schools, and Halls
792	Producers, Orchestras, Entertainers
793	Bowling Centers
801	Offices & Clinics Of Medical Doctors
802	Offices and Clinics Of Dentists
803	Offices Of Osteopathic Physicians
804	Offices Of Other Health Practitioners
807	Medical and Dental Laboratories
809	Health and Allied Services,Not Elsewhere Classified
81	Legal Services
82	Educational Services (schools, colleges,universities and libraries)
832	Individual and Family Services
835	Child Day Care Services
839	Social Services, Not Elsewhere Classified
841	Museums and Art Galleries
86	Membership Organizations
87	Engineering, Accounting, Research,Management, and Related Services
899	Services, not elsewhere classified

President Obama Details Possible Cuts to Federal Spending under Budget Control Act of 2011

By Edwin S. Hopson

On September 14, 2012, the President’s Office of Management and Budget released a report on what the estimated impact of sequestration pursuant to Sequestration Transparency Act, as mandated by the Budget Control Act of 2011, would be on January 2, 2013, should the Congress not agree upon a budget or otherwise intervene prior to that time.  According to the report, it is estimated that, among other things, there would be a 9.4% cut in non-exempt defense discretionary spending and a 8.2% decrease in non-defense, non-exempt discretionary funding.  The nearly 400 page report details plans for cuts federal government spending amounting to some $1.2 trillion dollars.

In Appendix A to the report, the following agency cuts in selected labor/employment sectors are as follows:

U.S. Department of Labor Wage and Hour Division: $19 million

Occupational Safety and Health Administration: $46 million

Occupational Safety and Health Review Commission: $1 million

Office of Federal Contract Compliance Programs: $9 million

Equal Employment Opportunity Commission: $30 million

National Labor Relations Board: $23 million

These cuts, if implemented, would undoubtedly have significant impacts on these agencies.  It is assumed that each agency is preparing or has prepared contingency plans to deal with any such reductions in funding.

OSHA 300 Log Must Be Posted by February 1, 2012

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2012 to April 30, 2012 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations. 

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code	Industry
525	Hardware Stores
542	Meat and Fish Markets
544	Candy, Nut, and Confectionery Stores
545	Dairy Products Stores
546	Retail Bakeries
549	Miscellaneous Food Stores
551	New and Used Car Dealers
552	Used Car Dealers
554	Gasoline Service Stations
557	Motorcycle Dealers
56	Apparel and Accessory Stores
573	Radio, Television, & Computer Stores
58	Eating and Drinking Places
591	Drug Stores and Proprietary Stores
592	Liquor Stores
594	Miscellaneous Shopping Goods Stores
599	Retail Stores, Not Elsewhere Classified
60	Depository Institutions (banks & savings institutions)
61	Nondepository Institutions(credit institutions)
62	Security and Commodity Brokers
63	Insurance Carriers
64	Insurance Agents, Brokers, & Services
653	Real Estate Agents and Managers
654	Title Abstract Offices
67	Holding and Other Investment Offices
722	Photographic Studios, Portrait
723	Beauty Shops
724	Barber Shops
725	Shoe Repair and Shoeshine Parlors
726	Funeral Service and Crematories
729	Miscellaneous Personal Services
731	Advertising Services
732	Credit Reporting and Collection Services
733	Mailing, Reproduction, Stenographic Services
737	Computer and Data Processing Services
738	Miscellaneous Business Services
764	Reupholstery and Furniture Repair
78	Motion Picture
791	Dance Studios, Schools, and Halls
792	Producers, Orchestras, Entertainers
793	Bowling Centers
801	Offices & Clinics Of Medical Doctors
802	Offices and Clinics Of Dentists
803	Offices Of Osteopathic Physicians
804	Offices Of Other Health Practitioners
807	Medical and Dental Laboratories
809	Health and Allied Services,Not Elsewhere Classified
81	Legal Services
82	Educational Services (schools, colleges,universities and libraries)
832	Individual and Family Services
835	Child Day Care Services
839	Social Services, Not Elsewhere Classified
841	Museums and Art Galleries
86	Membership Organizations
87	Engineering, Accounting, Research,Management, and Related Services
899	Services, not elsewhere classified

OSHA Announces That It Has Revised Its Compliance Assistance Materials

By Edwin S. Hopson

On October 17, 2011, the U.S. Occupational Safety and Health Administration (OSHA) announced that it had recently published new and revised information that explains workers’ and employers’ rights, as well as how to protect employees from hazards in the construction, general and maritime industries. To order free copies of these materials online you can go to OSHA’s Publications page at:

http://www.osha.gov/pls/publications/publication.AthruZ?pType=AthruZ#S
,

or you can call OSHA’s toll free number at 800-321-6742 and request the materials.

Information on employers’ rights and responsibilities following an inspection are contained in a booklet entitled Employer Rights and Responsibilities. It explains what happens after an inspection, and discusses the types of violations for which an employer may be cited.

OSHA has also published information covering the construction, general industry and shipyard industries, and those who work outdoors.

       Laboratory Safety document and fact sheets (
http://www.osha.gov/pls/publications/publication.athruz?pType=Industry&pID=117
) advise laboratory managers on how to protect their workers from exposure to chemical, biological and physical hazards.

       Aerial Lifts Protect Yourself details measures employers must take to ensure safe use of aerial lifts by workers required to use this equipment.

       Aerial Lift Fall Protection Over Water in Shipyards QuickCard lists ways to protect workers using aerial lifts from injuries and death resulting from equipment failure, tip-over, falls and ejection.

       Permit-Required Confined Spaces in General Industry QuickCard explains what workers should do before entering a confined space, such as an underground vaults, tanks, storage bins, silos or manholes.

       Working Safely in Trenches QuickCard provides illustrations of protective systems that should be used to prevent worker injuries and death from trench cave-ins.

       Nail Gun Safety educates construction employers and workers on how to prevent work-related nail gun injuries.

       Protecting Workers from Heat Stress QuickCard and poster emphasizes the importance of employers providing workers with water, rest and shade to prevent workers from suffering heat illness, exhaustion and stroke.

Finally, OSHA’s Small Entity Compliance Guide for Respiratory Protection Standard provides small businesses with a comprehensive step-by-step guide complete with checklists and commonly asked questions.