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Working in A Winter Wonderland

Jan. 6, 2014

The Occupational Safety and Health Administration (OSHA) is responsible for enforcing regulations pertaining to workplace safety. In general terms, employers have to maintain a safe workplace for employees. Naturally, there’s more to it than that, but that’s the basic principle. When people think OSHA, they ordinarily think about manufacturing, construction, container ships, and other places where workers interact with things that are big, fast, or toxic. However, the general regulations also apply to office spaces. As long as there are rolling chairs to stand on, step ladders to fall off of, and break room sink disposals to stick hands into, OSHA will have a watchful eye even on the most tame work environments. However, winter weather can affect every type of business, so OSHA’s guidance for working in a winter wonderland likely applies to your enterprise.

Employers are responsible for protecting workers from the hazards associated with responding to or recovering from a winter storm. Although most injuries occur from storm-related traffic accidents, a large percentage result from being caught in the storm without the right supplies or equipment to survive under the conditions. Therefore, employers should carefully consider OSHA’s preparedness and response/recovery advice. Regarding preparedness, OSHA makes specific recommendations for vehicle maintenance and the contents of winter emergency kits. Although maintenance can be expensive and serious winter emergency kits take space, they’ll provide more than cold comfort if you or any of your employees end up stuck in the snow. As to response and recovery, OSHA’s winter storm materials provide both information and procedural recommendations on a wide range of topics.

Click here for winter storm details on OSHA’s website.

Click here for a very brief version on OSHA’s blog.

OSHA Enforcement Reminder

While we have OSHA on our minds, did you know that enforcement is now only a click away? Stepped up enforcement action is nothing new for OSHA (or EEOC or DOL or NLRB or OFCCP or ICE or…). But, OSHA has made employee involvement in enforcement against employers even more convenient. Workers with an issue can now file complaints online. For your convenience, has published a list of the various statutes under which such electronic complaints may be filed. Click here to review them all.

Employer Victory: You Do Not Have to Teach Employees How to Form Unions

The National Labor Relations Board (NLRB) administers the National Labor Relations Act (NLRA). The NLRA is the law that established the right of employees to form labor unions. It also set forth ground rules for interaction between employers and employees. The NLRA was long thought only to apply to unionized environments. However, due to broad language in the statute, it has been increasingly applied to non-union workplaces over the last twenty years or so. The NLRB regularly tests the boundaries of its authority.

A few years ago, NLRB hatched a plan to force employers to post information about how workers can unionize. The posters would have to be with all the other standard compliance posters covering such topics as minimum wage and illegal discrimination. Last May, a federal appellate court determined the posting rule was invalid because the methods NLRB proposed to enforce it were illegal. Everyone in the employment law community has been holding their breath, waiting to see if the NLRB would seek Supreme Court review. However, the window for requesting such review closed on January 2, 2014. Therefore, the appellate court ruling stands: and the NLRB poster battle has ended (for now).

Employer Victory: Mandatory Arbitration Clauses Do Not Violate NLRA

Another power grab by the National Labor Relations Board (NLRB) was recently foiled by a federal appellate court. The had previously ruled that mandatory arbitration agreements violated workers’ rights under the National Labor Relations Act (NLRA). The Board held that such agreements were improper whether they were in collective bargaining agreements or in agreements with individual employees. The employer in that case appealed the Agency’s ruling to a federal appellate court.

The federal appellate court reversed the agency’s ruling, noting that Congress did not intend for the NLRA to take precedence over the Federal Arbitration Act (FAA). The FAA provides for binding mandatory arbitration by contract and substantially limits opportunities for appeal. Even tough the FAA stands above the NLRA, there was one important caveat in the Court’s ruling: in order to be lawful, an employee mandatory arbitration provision must state that employees are free to file charges with the NLRB despite the mandatory arbitration provision. Without such a statement, the arbitration agreement could violate the NLRA by giving workers the idea that the agreement diminished their rights under the NLRA.

Speaking of Winter, How About an ICE Update?

In November of last year, we wrote about a case where a $175,000 fine was upheld against a small employer for I-9 violations. That case was interesting because it demonstrated that “good faith effort” was not sufficient for compliance purposes. Another case that surfaced late last year caught my attention because it demonstrates how intentionally violating I-9 requirements can lead to criminal charges. Back in 2011, in not-too-distant Ottawa, Kansas, Immigration and Customs Enforcement (ICE) investigated El Mezcal Restaurant and found that form I-9 was missing for 14 employees. In November of that year, ICE ordered the manager to comply with the Immigration Reform and Control Act (IRCA), from which the I-9 requirements stem. ICE also levied a fine. Now fast forward to September, 2013. ICE claimed the same restaurant manager continued to hire illegal aliens, provided them with housing, and paid them in cash. The manager was individually charged with four counts of harboring illegal aliens for financial gain and five counts of encouraging illegal aliens to reside in the United States for financial gain. If convicted, the manager could be imprisoned for up to ten years fined over $2 million. Don’t get ICEd this winter. Audit your I-9 files and practices on a regular basis.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.