Latest News from SHRM

Michael Patrick O'Brien
February 4, 2005

Remember that the Occupational Safety and Health Administration (OSHA) has announced a new posting requirement, effective February 1, 2005. This requires: 1) employers to post a summary (OSHA form 300A) listing the total number of job-related injuries that occurred during 2004 (the previous year) (see http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf); 2) the posted summary must be available for three months, i.e., through April 30, 2005; 3) companies with no recordable injuries or illnesses must post the form with zeros as the total; 4) a company executive must certify the summaries; and 5) the summary must be displayed in a common area and copies made available for employees with no fixed establishment. Failure to comply with these new requirements can result in a civil penalty of up to $7,000 per violation.

Firing Workers Who Smoke

A Michigan company has come under fire for firing employees who smoke cigarettes, even on their own time. The company gave employees a 15-month advance warning of its planned actions and provided assistance in kicking the habit. Some employees quit smoking, some quit their jobs, and others were fired. The company claims its actions are part of an effort to create a healthier workplace. It will test employees for nicotine in the coming months. Although the employer’s actions are probably legal in Michigan (and Utah), they would be illegal in certain states (e.g., Wyoming and 28 other states) that protect employees who engage in legal actions (such as smoking) during their off-duty time.

Big Settlement for Janitors

A recent employment-law settlement and jury verdict again demonstrate the serious hazards that arise from an employer’s failure to comply with applicable employment laws. The settlement: Supermarket janitors are $22 million richer today, due to an employment law settlement with three national supermarket chains. The janitors claimed they were not paid overtime, and in some cases minimum wages, due under the Fair Labor Standards Act (FLSA). The verdict: A jury in Orlando, Florida, has awarded a man $1.5 million on his retaliation claim against a national delivery company. The man claimed retaliation after his employer allegedly rejected his attempt to promote two minority employees.

ADA/FLMA Updates

Here are three interesting developments regarding the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). First, the federal appeals court that governs Utah and the Rocky Mountain area has ruled that disabled workers can sue for hostile work environment harassment based on disability. The case involved an employee who claims her co-workers called her “nuts” or “crazy.” Second, the same federal appeals court has invalidated an FMLA regulation defining the term “worksite.” The regulation stated that when an employee is jointly employed by two or more employers, the primary worksite from which the employee is assigned or reports is used to determine FMLA eligibility. Instead, the court said the determinative worksite must be the one where the employee regularly works. Finally, the Justice Department has extended, until May 31, 2005, the deadline for public comments on proposed new ADA rules for physical access.

Tax Ruling Impacts Employment Lawsuits

The United States Supreme Court has ruled that the portion of money recovered in a lawsuit paid to an attorney as a contingency fee is taxable income to the plaintiff employee. Who cares? National SHRM reports that a law Congress enacted in October of 2004 prevents the Internal Revenue Service (IRS) from taxing plaintiffs on attorneys’ fees won in discrimination lawsuits. The new law allows plaintiffs in employment cases to subtract contingent fee awards from their gross incomes.

Affirmative Action FAQs

CCH reports that federal contractors will want to take notice of the Office of Federal Contract Compliance Programs' (OFCCP) "Frequently Asked Questions" (FAQs) concerning the agency’s compliance evaluations of contractors with Functional Affirmative Action Plans. Answers to the following questions are posted on the agency website http://www.dol.gov/esa/regs/compliance/ofccp/faqs/CSAL_QsAs.htm ): How did my company get selected for an OFCCP compliance evaluation? Where will the functional scheduling letters come from, and where will I submit the written AAP and support data for my function? Will other functional units of my company get evaluated during the current year? Does a functional compliance evaluation resemble an establishment-based evaluation? How does a functional compliance evaluation differ from an establishment-based evaluation? Once a compliance evaluation has been completed, when can our company expect that function to be evaluated again?

EEOC Launches Spanish Language Website

The Equal Employment Opportunity Commission (EEOC) has launched a Spanish language version of www.eeoc.gov, its website. The EEOC hopes the new site will assist both employers and employees in the Hispanic community. In other words, La Comisión para la Igualdad de Oportunidades en el Empleo (EEOC) ha lanzado una versión española del idioma de www.eeoc.gov, su website. El EEOC espera que el website nuevo ayudara tanto los empleadores como los empleados en la comunidad hispana.

Michael Patrick O'Brien is an attorney with Jones Waldo in Utah and serves as the Utah State and Salt Lake SHRM legal director. Contact him at mobrien@joneswaldo.com or 801-534-7315.