In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor (DOL) adjusted penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

The new penalties will take effect after August 1, 2016.  Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.  Below is a table of the current and new penalty amounts depending on the type of violation.

Type of Violation  Current Maximum Penalty   New Maximum Penalty
Serious
Other-Than-Serious
Posting Requirements		 $7,000 per violation $12,471 per violation
Failure to Abate $7,000 per day beyond the abatement date $12,471 per day beyond the abatement date
Willful or Repeated $70,000 per violation $124,709 per violation

While these are federal penalties that will be imposed by OSHA, states that operate their own OSHA plans are required to also adopt maximum penalty levels that are at least as effective as Federal OSHA’s.  This means that in California, employers found to be in violation of CalOSHA’s health and safety standards are also at risk of increased penalties.

Takeaway:  Employers should take this opportunity to review the effectiveness of their Injury and Illness Prevention Plan (IIPP), including, but not limited to, evaluating whether they are meeting certain safety training and safety equipment standards. IIPPs should be living, breathing documents that are regularly reviewed and updated as circumstances change in the workplace that could impact employee health and safety.  Failure to do so can result in significant penalties from CalOSHA.  If you find yourself being investigated by CalOSHA, contact the attorneys in Weintraub Tobin’s Labor and Employment Department.  They have years of experience representing employers during CalOSHA investigations and in appealing CalOSHA citations.

 

The EEOC Special Task Force (“Task Force”) has spent the last 18 months examining the myriad and complex issues associated with harassment in the workplace. Thirty years after the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964, the Task Force concludes that “we have come a far way since that day, but sadly and too often still have far to go.”

The Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor. The Task Force reflected a broad diversity of experience, expertise, and opinion. From April 2015 through June 2016, the Task Force held a series of meetings – some were open to the public, some were closed working sessions, and others were a combination of both. In the course of a year, the Task Force received testimony from more than 30 witnesses, and received numerous public comments.  The Task Force focused on learning everything about workplace harassment – from sociologists, industrial-organizational psychologists, investigators, trainers, lawyers, employers, advocates, and anyone else who had some useful information.

Below is a summary of the Task Force’s key findings.

  • Workplace Harassment Remains a Persistent Problem. Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion.
  • Workplace Harassment Too Often Goes Unreported. Common workplace-based responses by those who experience sex-based harassment are to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior. The Task Force found that roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.Beth-West-15_web

Continue Reading The EEOC Special Task Force Issues Its Report on the Study of Harassment in the Workplace and Finds that “We Have Come Far But Still Have Far To Go”

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced publication of a Final Rule in the Federal Register that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This Final Rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The Final Rule deals with a variety of sex–based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, failure to provide workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination.

The Final Rule addresses the following subjects:

  • Brings the sex discrimination guidelines up to date. The Final Rule aligns OFCCP’s regulations with current law and addresses the realities of today’s workplaces. It, therefore, provides more accurate and relevant guidance to contractors than the outdated guidelines.
  • Provides protections related to pregnancy, childbirth, and related medical conditions. The Final Rule protects employees against discriminatory treatment because of pregnancy, childbirth, or related medical conditions, including loss of jobs, wages, or health care coverage. The Final Rule requires that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to an employee who needs such accommodations because of pregnancy, childbirth, or related medical conditions, in certain circumstances where those contractors provide comparable accommodations to other workers, such as those with disabilities or occupational injuries.Beth-West-15_web

Continue Reading OFCCP Issues New Rule Regarding Sex Discrimination For Federal Contractors

Summary of Program

Join the attorneys from Weintraub Tobin’s Workplace Investigations Unit as they discuss the fundamentals of an effective workplace investigation.

Program HighlightsL&E2015

  • The duty to investigate
  • Determining who will do the investigation
  • Recognizing your own biases
  • Tips for conducting the investigation
    • Preparation
    • Conducting and documenting witness interviews
    • Analyzing the evidence and making credibility determinations
  • Writing the investigation report

Date:   June 16, 2016

Time:   9:30 a.m. – 11:30 a.m. (Registration and breakfast begins at 9:00 a.m.)

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided.  Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street.

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.

Are you sure you’re paying your exempt employees enough?   Even if you are right now, you might not be come December 1, 2016.  The U.S. Department of Labor unveiled today its long-awaited Final Rule updating the definitions of most types of exempt employees under federal law.

While there are several important provisions in the new rule, the most important for California employers is the new minimum salary threshold for exempt employees.  Federal law will soon  require employees earn at least $47,476 annually ($913 per week) to qualify for the executive, administrative, or professional exemptions.  This marks a significant jump from the previous federal minimum of $23,660 ($455 per week).

Under California state law, employers are currently required to pay exempt employees a salary equal to no less than twice the state minimum wage.  This translates to $41,600 annually.  State laws, however, can only offer employees more protection than federal laws, not less.  Because the state minimum salary for exempt employees will now be lower than the federal minimum, California employers will have to pay its exempt employees the federal number to continuing classifying an employee as exempt.

In addition, the DOL’s fact sheet, linked at the bottom of this blog, describes the laws key provisions as follows:

“The Final Rule focuses primarily on updating the salary and compensation levels needed for EAP workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, which is $913 per week or $47,476 annually for a full-year worker;
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is $134,004; and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. The Final Rule makes no changes to the duties tests.”

The law is effective December 1.  Employers should take the time between now and then to audit all exempt employees’ salaries to ensure they are making the minimum by December 1.

Read the DOL’s fact sheet here: https://www.dol.gov/whd/overtime/final2016/overtime-factsheet.htm