Wyche at Work: July 2013 Employment Update

Prepared by Ted Gentry
July 2013

Administration Postpones Deadline for Employer Mandate

The health care reform law, the Patient Protection and Affordable Care Act, includes the so-called “employer mandate,” which requires employers with more than 50 full-time equivalent employees to provide a certain level of health insurance coverage or pay a financial penalty. As Wyche at Work set forth earlier this year, this mandate was originally scheduled to go into effect at the beginning of 2014. On July 2, 2013, the Obama administration announced that the employer mandate will be postponed and will not go into effect until the beginning of 2015. This postponement does not apply to the separate mandate requiring individuals to purchase health insurance coverage or pay a penalty, although some commentators speculate that political pressures might result in postponement of the individual mandate as well.

Federal Agencies Join Forces to Investigate Charges

The National Labor Relations Board, which has made headlines in its own right, has entered into a formal agreement with the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to coordinate efforts on employment-related claims that fall under the authority of each agency. According to a press release issued by the DOJ, the Memorandum of Understanding will allow the agencies to share information, refer matters to each other and coordinate investigations. For example, the NLRB may refer matters it uncovers during an investigation — such as verification of employment authorization — to the OSC, which enforces the anti-discrimination provision of the Immigration and Nationality Act. The OCS in turn may refer to the NLRB matters such as infringement on the right to form a union or to bargain collectively.

According to the press release, everyone stands to gain from the joint effort – employees will benefit from the “efficiency of government cooperation” in case they have filed a claim with the wrong agency or are unaware of additional protections available under other laws, and employers will “benefit” from agency guidance on complying with the applicable laws. How that intent plays out remains to be seen; meanwhile, the OSC’s employer webpage is a good resource for publications, posters and guidance on anti-discrimination issues.

OSHA Initiatives Require Employer Action

Deadline Approaches for Compliance with OSHA’s Revised HCS

Employers have until December 1, 2013 to train workers on the new requirements of OSHA’s Hazard Communication Standard, recently revised to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. Major changes to the HCS include new label elements that provide a harmonized signal word, pictogram and hazard statement for each hazard class and category, and a re-naming and standardized format for Material Safety Data Sheets (MSDS), now known as Safety Data Sheets (SDS).

According to an OSHA Fact Sheet, the required training must include at a minimum the following topics:

  • Label elements
    • Type of information the employee would expect to see on the new labels;
    • How the employee might use the labels in the workplace;
    • How the elements work together on a label.
  • Format of SDS
  • How the information on the label relates to the SDS

The Fact Sheet provides more detail on the training required, and OSHA’s hazard communication webpage provides other resources and guidance on the revised standard.

OSHA Guidance on Training Temporary Workers

OSHA has recently addressed issues surrounding the training and safety of temporary workers. Here are some recommendations from OSHA guidance to help employers and temporary agencies determine their roles in ensuring the safety of temporary employees:

  • While OSHA training requirements depend on the industry, worksite and job duties, it is generally the responsibility of the temporary agency to ensure employees receive proper safety training. The host employer typically provides workplace-specific training for particular tasks.
  • Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals.
  • Recordkeeping responsibilities generally depend on who supervised the employees day to day.

In the guidance document, OSHA recommends that the temporary agency and host employer define their respective responsibilities under OSHA in their contract.

As further incentive to review your safety practices regarding temporary workers, OSHA launched an initiative to protect temporary workers. Earlier this year, OSHA instructed its field inspectors to determine during their inspections if any employees are temporary and whether any identified temporary workers are exposed to a violative condition. Through records and interviews, inspectors are to assess whether temporary workers have received required training in a language and vocabulary they can understand. This information will be logged under a new code for temporary workers in the OSHA information system. Inspectors are also to document the name and location of the temporary agency and the reporting structure for temporary workers.

Tommy Wyche is the 2013 Green Day Honoree

Tommy Wyche will be recognized as the 2013 Green Day Honoree at the Greenville Drive game on August 6th at Fluor Field.  Wyche at Work is proud to be associated with Tommy, who has undoubtedly made our area a better and more beautiful place to work. Tommy’s role in turning around Greenville’s Main Street into a thriving area, in preserving treasured spots in the South Carolina Upstate, and his leadership in numerous Greenville organizations has been well documented – as was outlined in his 2013 Green Day Honoree recognition. Congratulations, Tommy, on a well-deserved honor!

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.
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