Bass Berry & Sims Labor Talk

NLRB Decision Enhances the Risk of Unionization of Joint Employers

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

The National Labor Relations Board (NLRB) recently made it easier for unions to force joint employers to recognize and bargain with unions. In its decision in Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016), the NLRB made it more likely that joint employers (now defined broadly under other NLRB precedent) will be forced to recognize the union of their co-employers’ workers, and will be required to bargain directly with the union over the terms and conditions of employment it controls. Companies which use temporary staffing agencies and other such third-party agencies, as well as staffing agencies themselves, and franchisees and franchisors all should be aware of the possible consequences. For example, a national franchisor may be required to bargain with a franchisee’s union regarding workplace policies and standards over which the franchisor attempts to assert control. Or, a user of temporary labor could be required to bargain with its staffing agency employees’ union regarding reasons for ending the temporary work assignment, standards for converting the temporary worker to direct employment, workplace policies, assignment of work, production and evaluation standards, and the like. Or, a temporary staffing agency’s employees could be organized by its customer’s employee union and be required to bargain over pay, benefits and other terms and conditions of employment, merely by virtue of its employees being assigned as temporary workers at that particular unionized employer.

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New OSHA Rules Raise Penalties and Could Affect Post-Injury Drug Testing Requirements

Posted in Employee Handbooks and Policies

OSHA (Occupational Safety and Heath Administration) logo

The Occupational Safety and Health Administration (OSHA) published an interim final rule on July 1, 2016, that increases the maximum penalties for citations significantly. This is the first increase in OSHA penalties since 1990. Under a statue passed by Congress in 2015, federal agencies must adjust penalties based on the Consumer Price Index (CPI). Since the CPI has increased 78% since 1990, OSHA’s new penalties will increase by that amount. The new penalties take effect August 1, 2016. The following chart compares the existing and new penalties:

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


The new penalties will apply to any citation issued on or after August 1, 2016, for any violation that occurred after November 2, 2015.

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EEOC Issues Revised Equal Pay Data Rule

Posted in Wage and Hour Law and Practice

On July 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a revised version of its proposal to expand pay data collection from federal contractors and other employers with more than 100 workers. The revised proposal pushes back the date of the first required employer report to allow for the use of W-2 wage and salary reports.

The EEOC initially published its proposed rule in late January. The proposed rule expands the information certain employers must report to the federal government on an EEO-1 report. The EEOC’s proposal would add data on pay ranges and hours worked to the information currently collected.

The EEOC considered and adopted specific suggestions made by commenters during the initial 60-day comment period that ended earlier this year. For example, the EEOC moved the due date for the EEO-1 survey from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on a calendar year. In addition, the EEOC agreed to give employers the choice of reporting either a 40-hour week for full-time exempt and 20-hour week for part-time exempt workers, or in the alternative, providing an annual report for such employees. This change is in response to employer concerns for the non-standard weekly hours for this category of workers. The updated rule comes with a fresh, 30-day comment period that runs until August 15, 2016.

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Council Discusses Proposal that Would Further Restrict an Employer’s Ability to Review Criminal History

Posted in California Employment Law

On June 27, 2016, the Fair Employment and Housing Council considered a proposal to amend the Department of Fair Employment and Housing (DFEH) regulations with respect to the use of criminal history records in employment decisions. The proposed regulations would outline current law while also imposing additional restrictions that would further limit an employer’s use of such information.

Under current law, California employers are prohibited from utilizing certain criminal records and information in hiring, promotion, training, discipline, termination, and other employment decisions. In particular, when making an employment decision, employers may not consider: (1) an arrest or detention that did not result in conviction; (2) an individual’s referral to or participation in a pre-trial or post-trial diversion program; (3) a conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated; or (4) a non-felony conviction for possession of marijuana that is more than two years old.

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Reminder — Annual Deadline to Report and Pay PCORI Fee is Rapidly Approaching

Posted in Employee Benefits

The annual filing (and fee payment) for applicable self-insured health plans and specified health insurance policies used to fund the Patient-Centered Outcomes Research Institute (the PCORI fee) is due by August 1, 2016. Internal Revenue Service (IRS) Form 720, Quarterly Federal Excise Tax Return, on which the PCORI fee is required to be reported (in Part II, IRS No. 133), typically is due by July 31 of each year; however, because that date falls on a Sunday this year, the Form 720 deadline falls on August 1 this year.

The filing rules have not changed, although the applicable rate has increased to $2.17 per covered life.

For an insured plan, the filing obligation falls on the insurer. However, for an “applicable self-insured health plan,” the filing obligation lies with the plan sponsor. Applicable self-insured health plans include self-insured major medical coverage and health reimbursement arrangements (HRAs) for both employees and retirees, but do not include “excepted benefits” (e.g., most health flexible spending arrangements (health FSAs), standalone dental or vision plans, certain employee assistance programs (EAPs) that do not provide significant benefits in the nature medical care, etc.). The IRS provides a helpful chart to help identify the plans to which the PCORI fee applies.

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California Passes Tighter, Statewide Restrictions on Smoking in the Workplace

Posted in California Employment Law

California recently amended state law with regards to smoking in the workplace. The bill, which was signed by the governor on May 4, 2016, is intended to “prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state . . . eliminating the need of local governments to enact workplace smoking restrictions.” The former law had not applied to employers with five or fewer employees and had allowed employers to permit employees to smoke in the company break room. It had also exempted several types of workplaces and enclosed spaces from coverage, including hotel lobbies, banquet rooms, bars, taverns, and warehouses.

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New Los Angeles and San Diego Sick Leave Ordinances Now in Effect

Posted in California Employment Law

California employers must now juggle two additional sick leave laws.  Although California already has a statewide mandate requiring that all employers within the state provide their employees with paid sick leave (see March 17, 2016 blog post), several cities, including Emeryville, Oakland, and San Francisco, have passed their own ordinances imposing additional obligations on employers with employees within their city limits.  Los Angeles and San Diego have now joined that list, with new paid sick leave laws going into effect as of July 1, 2016, and July 11, 2016, respectively.

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Los Angeles and San Diego Raise Minimum Wage

Posted in California Employment Law

In addition to passing their own paid sick leave laws, Los Angeles and San Diego have also chosen to raise minimum wages over the course of several years.

The Los Angeles ordinance provides the following schedule of minimum wage increases:

For employers with 26 or more employees:

  • July 1, 2016: $10.50/hr
  • July 1, 2017: $12.00/hr
  • July 1, 2018: $13.25/hr
  • July 1, 2019: $14.25/hr
  • July 1, 2020: $15.00/hr

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Caution Around Concerted Activities

Posted in Union Organizing and Collective Bargaining

Bass, Berry & Sims attorney Michael Moschel discussed the significance of the appeals court decision in MikLin Enterprises Inc. v. National Labor Relations Board regarding protected concerted activity for employees. In the case, the court upheld an earlier NLRB decision that found MikLin Enterprises violated sections of the National Labor Relations Act by terminating and disciplining employees who participated in protected concerted activity, as well as encouraging other workers to badger union supporters via social media. Continue Reading