Burr & Forman Update 5/9/22
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US Adds 428,000 Jobs in April (5/6)
- US Adds 428,000 Jobs in April (5/6)
- On May 6, the Bureau of Labor Statistics released its jobs report for April 2022.
- According to the report, U.S. added 428,000 jobs in April and the unemployment rate remained at 3.6%.
- Average hourly earnings rose another 10 cents in April to $31.85. Over the past 12 months, average hourly earnings have gone up by 5.5%.
- The number of employees in motor vehicles and parts manufacturing increased by 6,100 in April.
Sources:
https://www.bls.gov/news.release/empsit.nr0.htm
https://www.bls.gov/news.release/pdf/empsit.pdf
NLRB General Counsel Announces New Protocol to Increase Immigrant Worker Protections (5/2)
- NLRB General Counsel Announces New Protocol to Increase Immigrant Worker Protections (5/2)
- On May 2, the General Counsel at the National Labor Relations Board (“NLRB”) issued a memo on protocols to ensure foreign workers’ rights under the National Labor Relations Act (“NLRA”).
- Under the memo, NLRB’s regional offices must distribute a fact sheet (available in English and Spanish) to all witnesses, advising them that:
- immigration status is irrelevant to whether there has been an NLRA violation;
- information obtained during NLRB investigations is protected; and
- a charging party or witness may ask the NLRB to seek immigration relief for employees at a worksite if necessary to protect employees who are participating in NLRB processes or exercising their NLRA rights.
Sources:
Amazon Wins Union Election at its 2nd NY Warehouse (5/2)
Amazon Wins Union Election at its 2nd NY Warehouse (5/2)
- After Amazon lost the union election at its first warehouse, it won the election, 618 to 380, held at the second warehouse on Staten Island in New York.
- Amazon’s spokesperson stated, “We’re glad that our team at LDJ5 were able to have their voices heard,” and “We look forward to continuing to work directly together as we strive to make every day better for our employees.”
- The Amazon Labor Union has been calling for higher wages, longer breaks, and better health and safety policies.
Source:
Burr & Forman Update 3/21/22
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U.S. House Passes Bill Banning Hairstyle Discrimination (3/18)
On March 18, the U.S. House of Representatives passed a bill (H.R. 2116), in a 235-189 vote, which would prohibit discrimination based on one’s hair texture or hairstyle — specifically pointing to hairstyles associated with a particular race or national origin.
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With this new passing, the bill will be sent to the Senate to be voted upon.
Source:
https://www.congress.gov/bill/117th-congress/house-bill/2116/text
Source:
https://www.congress.gov/bill/117th-congress/house-bill/2116/text
Google Accused of Bias Against Black Workers (3/18)
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On March 18, a former employee at Google sued the company, claiming it systematically discriminated against Black workers by placing them in lower-level jobs, underpaying them and denying them opportunities to advance.
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According to the complaint seeking class-action, Google maintains a “racially biased corporate culture” that favors white men, where black people comprise only 4.4% of employees and about 3% of leadership and its technology workforce.
Sources:
https://www.nytimes.com/2022/03/18/technology/google-discrimination-suit-black-employees.html
https://nypost.com/2022/03/18/google-is-accused-in-lawsuit-of-systemic-bias-against-black-employees/
Burr & Forman Update 3/14/22
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EEOC Sues Chipotle for Sexual Harassment, Constructive Discharge (3/9)
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On March 9, the U.S. Equal Employment Opportunity Commission (EEOC) filed lawsuit against Chipotle, alleging it subjected female employees to egregious and ongoing sexual harassment and forced two employees to leave their jobs.
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According to the Complaint, in 2019, a 29-year-old service manager began to target a 16-year-old worker with unwelcome sexual comments, touching, and requests for sex. After a different service manager reported her concerns with the 29-year-old service manager’s behavior, the general manager failed to investigate and instead warned the teen she could be fired for engaging in an inappropriate relationship with the service manager. The general manager continued to schedule the teen to work a closing shift with the alleged harasser.
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In addition, according to the Complaint, in 2020, Chipotle management again failed to take appropriate action upon receiving complaints of sexual harassment regarding a 24-year-old crew member who made comments about the bodies of several workers and referred to them with unwelcome nicknames like “mama,” “sweetheart,” and “baby girl.” Chipotle agreed to investigate their complaints but permitted the alleged harasser to return to the workplace where he angrily confronted those who had complained about the harassment. Fearing for their safety because of Chipotle’s inaction, two workers quit.
Source:
https://www.eeoc.gov/newsroom/eeoc-sues-chipotle-sexual-harassment-constructive-discharge
OSHA’s Emergency Action Plan Requirements
OSHA’s Emergency Action Plan Requirements
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Almost every business is required to have an emergency action plan (EAP).
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At a minimum, the plan must include the following elements under 29 CFR 1910.38(c):
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Means of reporting fires and other emergencies
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Evacuation procedures and emergency escape route assignments
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Procedures for employees who remain to operate critical plant operations before they evacuate
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Accounting for all employees after an emergency evacuation has been completed
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Rescue and medical duties for employees performing them
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Names or job titles of persons who can be contacted
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An employer must designate and train employees to assist in a safe and orderly evacuation of other employees.
Sources:
https://www.osha.gov/etools/evacuation-plans-procedures/eap/minimum-requirements
https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.38
Burr & Forman Update 3/7/22
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On March 3, 2022, President Biden signed into law H.R. 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”
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The act, which took effect immediately, amends the Federal Arbitration Act and invalidates pre-dispute agreements requiring arbitration of sexual assault or sexual harassment claims.
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The act specifies that courts, not arbitrators, decide its applicability and would apply prospectively to any claims or disputes arising or accruing after the date of enactment.
Source:
https://www.congress.gov/bill/117th-congress/house-bill/4445/text
US Adds 678,000 Jobs in February, Unemployment Rate Falls to 3.8% (3/4)
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On March 4, the Labor Department’s Bureau of Labor Statistics released its Jobs Report for February 2022.
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Nonfarm payrolls for the month grew by 678,000 and the unemployment rate was 3.8%.
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Manufacturing as a whole added 36,000 jobs in February, but motor vehicles and parts manufacturing lost 18,000 jobs compared to the previous month.
Source:
https://www.bls.gov/news.release/pdf/empsit.pdf
Burr & Forman Update 2/28/22
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CDC Eases Mask Guidance (2/25)
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On February 25, the Centers for Disease Control and Prevention (CDC) announced it is relaxing its mask guidance for communities where hospitals aren’t under high strain.
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Under the new guidance, residents in areas considered to be low or medium risk (more than 70% of the population) are advised they can go indoors without masks.
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The CDC recommends continued mask use in high-risk areas.
Sources:
https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html
Stellantis UAW workforce eligible for $14,670 profit-sharing checks (2/23)
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Approximately 43,000 UAW-represented workers at Chrysler-parent Stellantis are eligible for $14,670 profit-sharing bonus, compared to last year’s $8,010.
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According to Stellantis, the amount is the largest that the company or its predecessors have announced in 35 years.
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Ford’s UAW workers’ profit sharing bonus for this year is $7,377, and General Motors’ workers’ profit sharing bonus is $10,250.
Sources:
https://www.freep.com/story/money/cars/chrysler/2022/02/23/stellantis-profit-sharing-uaw-2021-earnings/6900729001/
https://uaw.org/statement-uaw-vice-president-cindy-estrada-director-uaw-stellantis-department-2021-profit-sharing-announcement/amp/
Burr & Forman Update 2/21/22
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US DOL Announces Plans to Hire 100 Wage & Hour Investigators (2/1)
US DOL Announces Plans to Hire 100 Wage & Hour Investigators (2/1)
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On February 1, the U.S. Department of Labor (“DOL”) announced that its Wage and Hour Division is seeking to add 100 investigators, which indicates it would enhance enforcement activities.
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The Wage and Hour Division’s investigators’ responsibilities include:
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Conducting investigations to determine if employers are classifying its salaried employees correctly (exempt vs. non-exempt);
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Conducting investigations to determine if employers are calculating overtime hours correctly;
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Conducting investigations to determine if workers are misclassified as independent contractors;
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Conducting investigations to determine if employees are afforded FMLA rights in accordance with applicable rules; and
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Conducting investigations to determine if prevailing wage requirements are met.
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Source:
https://www.dol.gov/newsroom/releases/whd/whd20220201-2
OSHA’s Forklift Inspection Requirements
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OSHA requires that forklift vehicles have to be inspected at least daily, or after each shift when used around the clock.
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29 CFR 1910.178(q)(7)
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Industrial trucks shall be examined before being placed in service, and shall not be placed in service if the examination shows any condition adversely affecting the safety of the vehicle. Such examination shall be made at least daily.
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Where industrial trucks are used on a round-the-clock basis, they shall be examined after each shift. Defects when found shall be immediately reported and corrected.
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While there is no specific retention period for daily inspection records, retention for at least 3 months is generally recommended.
Sources:
https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.178
https://www.osha.gov/training/library/powered-industrial-trucks/checklist
Electronic Submission of 2021 OSHA 300A Due by March 2, 2022
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2021 OSHA Form 300A must be made by March 2, 2022.
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Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries, which includes manufacturing.
Sources:
https://www.osha.gov/news/newsreleases/trade/01052022
https://www.osha.gov/recordkeeping/naics-codes-electronic-submission
https://www.osha.gov/injuryreporting/
Burr & Forman Update 2/14/22
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Congress Passes Bill Prohibiting Mandatory Arbitration of Sexual Harassment and Assault Claims (2/10)
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On February 10, 2022, the U.S. Senate passed a bill, which is expected to be signed into law by President Biden, that prohibits employers from compelling arbitration of sexual assault or sexual harassment cases.
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The bill, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, was previously passed by the U.S. House of Representatives on February 7.
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It is unclear how the new law will work where a sexual or sexual assault harassment claim is joined with other claims.
Sources:
https://www.congress.gov/bill/117th-congress/house-bill/4445/text
https://www.congress.gov/bill/117th-congress/senate-bill/2342/text
Ford and GM UAW Workers to Receive Profit-Sharing Checks
Ford and GM UAW Workers to Receive Profit-Sharing Checks
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Ford Motor Co.’s UAW-represented employees, approximately 56,000, will receive profit-sharing checks averaging $7,377 this year. In 2021, Ford’s UAW workers received checks averaging $3,625.
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General Motors announced that its 42,500 U.S. hourly workers will receive a profit-sharing check of $10,250, compared to last year’s $9,000.
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Ford and GM have the same profit sharing formula of $1,000 per every $1 billion in annual earnings before interest and taxes.
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Fiat Chrysler’s parent company Stellantis will release 2021 earnings on February 23. Last year, about 43,000 workers for Fiat Chrysler averaged a payout of $8,010.
Sources:
https://detroit.cbslocal.com/2022/02/04/ford-uaw-workers-to-receive-average-7377-profit-sharing-checks/
https://www.freep.com/story/money/cars/ford/2022/02/03/ford-uaw-2022-profit-sharing-checks/6653800001/
https://www.freep.com/story/money/cars/general-motors/2022/02/01/gm-uaw-workforce-profit-sharing-checks-bonus/9303123002/
Burr & Forman Update 2/7/22
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Amazon’s Alabama Warehouse Workers Vote for Second Time in Union Election (2/4)
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Workers at an Amazon warehouse in Alabama are set to vote for a second time on whether to unionize after the workers rejected unionization in April 2021, 1,798 votes against unionizing and 738 votes in favor.
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New mail ballots were sent to more than 6,100 workers at the warehouse in Bessemer, Alabama, and the vote count is scheduled to start on March 28, 2022.
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Amazon currently employs approximately 1.1 million people in the U.S., mostly working at the company’s warehouses. Amazon’s minimum wage remains $15 an hour, but the company stated its average starting wage was $18 an hour.
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Amazon’s spokesperson stated,
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“Our employees have always had the choice of whether or not to join a union, and our focus remains on working directly with our team to make Amazon a great place to work.”
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Source:
https://www.npr.org/2022/02/04/1077089349/amazon-union-vote-alabama
U.S. Gains 467,000 Jobs in January (2/4)
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On February 4, the Bureau of Labor Statistics issued its monthly employment report for January 2022.
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The economy gained 467,000 jobs in January, and the unemployment rate rose slightly to 4 percent from 3.9 percent.
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The report also revised the number of jobs added in December, from the previously reported 199,000 to 510,000.
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Employment showed little change over the month in manufacturing, with 6,000 workers fewer than the previous month, but motor vehicles and parts manufacturing added 4,700 jobs.
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Employment in warehousing and storage showed significant growth, with 410,000 new jobs.
https://www.bls.gov/news.release/pdf/empsit.pdf
https://www.nbcnews.com/business/economy/economy-gained-surprise-467000-jobs-last-month-rcna14621
FY 2023 H-1B Cap Initial Registration Period Opens on March 1 (1/28)
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On January 28, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the initial registration period for the fiscal year 2023 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 18, 2022.
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If enough registrations are received by March 18, USCIS will conduct a random selection of registrants to be accepted to apply for H-1B status and to fill the 85,000 new H-1B visas (65,000 visas for regular cap petitions and 20,000 visas for advanced degree petitions) available for this year.
Sources:
https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-initial-registration-period-opens-on-march-1
https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season#:~:text=Congress%20set%20the%20current%20annual,subject%20to%20this%20annual%20cap
Burr & Forman Update 1/31/21
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OSHA Withdraws Covid-19 ETS for Large Private Employers (1/25)
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On January 25, the U.S. Occupational Safety and Health Administration (OSHA) withdrew its “Emergency Temporary Standard” (ETS) that would have required private sector US employers with 100 or more employees to either require Covid-19 vaccination or weekly testing.
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Although OSHA withdrew the vaccination and testing ETS, OSHA noted that the agency is not withdrawing the ETS as a proposed rule and that the agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.
Sources:
https://public-inspection.federalregister.gov/2022-01532.pdf
COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)
OSHA’s Forklift Operator Retraining/Recertification Requirements
OSHA’s Forklift Operator Retraining/Recertification Requirements
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The U.S. Occupational Safety and Health Administration (OSHA) requires employers with forklifts to train their forklift operator and under certain circumstances, require employers to re-train their forklift operators as follows:
29 CFR 1910.178(l)(4) – Refresher training and evaluation.
(ii) Refresher training in relevant topics shall be provided to the operator when:
(A) – The operator has been observed to operate the vehicle in an unsafe manner;
(B) – The operator has been involved in an accident or near-miss incident;
(C) – The operator has received an evaluation that reveals that the operator is not operating the truck safely;
(D) – The operator is assigned to drive a different type of truck; or
(E) – A condition in the workplace changes in a manner that could affect safe operation of the truck.
(iii) An evaluation of each powered industrial truck operator’s performance shall be conducted at least once every three years.
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The employer is required to certify that each operator has been trained and evaluated. In the certification, the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation must be included.
Source:
https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.178
Burr & Forman Update 1/24/21
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Burr & Forman Update 1/13/21
The U.S. Supreme Court just blocked OSHA’s Vaccine ETS applicable to employers that employ 100 or more employees. We will keep you updated.
https://www.bloomberg.com/news/articles/2022-01-13/supreme-court-halts-osha-rule-that-covered-80-million-workers
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6th Circuit Court Reinstates OSHA’s Vaccine Mandate (12/17)
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On December 17, the 6th U.S. Circuit Court of Appeals lifted the 5th Circuit Court’s stay order that had blocked OSHA’s vaccine mandate rules applicable to businesses with 100 or more employees.
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In the decision, the 6th Circuit noted that OSHA has historical precedent for using wide discretion to ensure worker safety and “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”
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The White House welcomed the court’s decision, and the spokesperson stated “[t]he OSHA vaccination or testing rule will ensure businesses enact measures that will protect their employees.”
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The Department of Labor stated it will not issue citations for noncompliance with any of the requirements until January 10, and it will not issue citations for the testing requirements until February 9 so long as businesses are making “good faith” efforts to implement the rules.
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OSHA’s emergency temporary standards required businesses with 100 or more employees to implement a mandatory vaccination program and/or mandate weekly testing and masks for those who refuse the vaccine.
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The ETS requires covered employers to establish, implement, and enforce an acceptable vaccination policy
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Those who are not vaccinated are subject to the 7-day testing requirements
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Proof of Vaccination Status – Employers are required to determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records and a roster of each employee’s vaccination status
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If the employee cannot provide written proof of their vaccination status, the attestation must be in the form of a written statement, subject to criminal penalties for knowingly providing false information
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Employers also should give paid time for workers to get vaccinated (up to 4 hours) or recover from any side effects (reasonable amount, but OSHA presumes that if an employer makes available up to two days of paid sick leave per vaccine dose for side effects, the employer will be in compliance with this requirement)
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COVID-19 Testing – Employees who are not fully vaccinated (two weeks after the final dose) must be required to provide a negative COVID-19 test every 7 days and must wear a mask covering their nose and mouth at work
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The testing must be done using a FDA authorized COVID-19 test, and it cannot be both self-administered and self-read unless it is observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result. The rule does not require that employers pay for testing.
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Reporting COVID-19 Cases – Employers must report employee work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the in-patient hospitalization and employee work-related COVID-19 fatalities within 8 hours of the employer learning about the fatality
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Employee Training – Employers must inform employees about (i) the requirements of the ETS, (ii) COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines (https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html)”; (iii) the OSHA prohibition against retaliation or discrimination; and (iv) the prohibition against knowingly supplying false statements or documentation
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Fines for violating the vaccination rules could be $13,653 per violation and go as high as $136,532 per violation if employers are found to be willfully non-compliant or repeat offenses
https://www.dol.gov/newsroom/releases/osha/osha20211218
https://www.cnbc.com/2021/12/17/federal-court-reinstates-biden-administrations-business-vaccine-mandate.html
https://www.11alive.com/article/news/politics/osha-vaccine-test-mandate-supreme-court-georgia-ag-chris-carr/85-91986cbd-2d74-473d-a663-e6afbd5284b7
ETS: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
OSHA’s webinar: https://www.youtube.com/watch?v=ixxkn3Y8z6g
FAQ: https://www.osha.gov/coronavirus/ets2/faqs
Compliance materials: https://www.osha.gov/coronavirus/ets2
Summary of the ETS: https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf
Burr’s legal alert: https://www.burr.com/2021/11/04/osha-issues-new-rule-for-employee-covid-19-vaccination-and-testing/
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EEOC Explains COVID-19 May be a Disability Under the ADA (12/14)
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On December 14, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to discuss when COVID-19 is a disability under the Americans with Disabilities Act (“ADA”).
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The Guidance explains that, in certain circumstances, individuals with COVID-19 will be entitled to job protections under the ADA, where it “substantially limits a major life activity,” either physically or mentally.
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However, COVID-19 is not always a disability under the ADA, and the guidance provides that “[a] person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.”
Source:
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#N
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NYC Employers Required to Mandate Covid-19 Vaccine (12/15)
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On December 6, New York City announced that beginning December 27 it would require all private employers to require their employees to show proof of COVID-19 vaccination before entering the workplace.
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On December 13, the commissioner of the Department of Health and Mental Hygiene (DOHMH) and the NYC Department of Health issued an order detailing the requirements.
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On December 15, NYC released guidelines on the private-sector vaccine mandate set to take effect on December 27.
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The order requires that private-sector workers provide proof of their first dose of the COVID-19 vaccine to their employers by December 27, 2021. These individuals must show proof of their second dose, as applicable, within 45 days of when they submitted proof of their first dose, and by no later than February 10, 2022.
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Employers must exclude any worker who has not provided proof of vaccination from the workplace, unless the employee is granted an exemption based on religious or medical needs.
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Employers must maintain a record of each worker’s proof of vaccination by either making a copy or taking a picture of their proof of vaccination or creating a paper or electronic record that records the worker’s name, their vaccination status, and the date a second dose will be provided, as applicable. This information should be treated as confidential and should be collected and maintained in a secure manner, but be readily available in the event of an inspection.
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NYC provided a checklist (https://www1.nyc.gov/assets/doh/downloads/pdf/covid/vaccination-workplace-accommodations.pdf) on how employers should handle accommodation requests.
Sources:
https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-vaccination-workplace-requirement.pdf
https://www1.nyc.gov/assets/counseltothemayor/downloads/Workplace-FAQ.pdf
https://www.nbcnewyork.com/news/coronavirus/nyc-shares-new-guidelines-as-private-sector-vaccine-mandate-looms/3451573/
COVID-19: Vaccination Workplace Requirement – NYC Health
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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NLRB’s Regional Director Orders Re-election at Amazon (11/29)
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The Regional Director of the National Labor Relations Board (“NLRB”) ordered a re-election at Amazon stating Amazon improperly pressured its Bessemer, AL warehouse staff to vote against joining a union.
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Amazon’s spokesperson noted that employees at the warehouse overwhelmingly chose not to join the union in the previous vote. “It’s disappointing that the NLRB has now decided that those votes shouldn’t count. As a company, we don’t think unions are the best answer for our employees.”
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In early 2021, a union campaign to unionize Amazon’s Bessemer Warehouse was led by the Retail, Wholesale & Department Store Union (RWDSU) and the workers voted, 1,798 to 738, against unionizing.
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One key controversy had been over a new mailbox in the warehouse’s private parking lot that Amazon said was installed by the U.S. Postal Service to make voting “convenient, safe and private.”
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Amazon is expected to appeal.
Sources:
https://abcnews.go.com/Business/amazon-union-election-alabama-ordered/story?id=81466349
https://www.npr.org/2021/11/29/1022384731/amazon-warehouse-workers-get-to-re-do-their-union-vote-in-alabama
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U.S. Tightens Travel Testing Requirements (12/2)
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The Centers for Disease Control and Prevention (“CDC”) is tightening travel rules to the U.S., requiring all in-bound international passengers to test for Covid within 24 hours of departure beginning on December 6.
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Previously, the U.S. required proof of a negative Covid test taken within 72 hours of departure, but this became applicable to only vaccinated travelers last month. Unvaccinated travelers had to have a negative Covid test within one day of departure.