OSHA Fines Depend Upon Where

OSHA thought states in FY 2021 would have an average fine for a serious workplace safety violation of at least $2,325, or 75% of the $3,100 federal average. Instead, 11 of the 21 states with state OSHA agencies had fines below OSHA’s acceptable range, per agency data.

Why does this matter? It means employers face a wide range of proposed fines for the same hazard—from Oregon’s low of $620 to California’s high of $9,580 – see the chart below.

CA Expanded Leave

California’s paid family and medical leave benefits will be more accessible for people with low-wage jobs, or else it will revert to the lowest benefit levels of any state-run paid leave program.

If Gov. Newsom signs a pending bill, it would increase benefits to replace 90% of low-wage workers’ income during qualifying weeks of leave starting in 2025, and a smaller percentage for higher-income workers.

Without the change in law, the nation’s largest and oldest state-run paid leave program will revert to a 55% wage replacement rate on Jan. 1, the lowest of the 11 states that have enacted paid family and medical leave.

Pay Transparency Laws on the Rise

Laws requiring companies to include a salary amount or range are about to be signed by governors in California and New York. In addition, Colorado, Washington state, and New York City already have similar laws.

Takeaway: it’s a best practice to conduct a salary audit to ensure that any pay disparities are based upon legitimate, nondiscriminatory reasons. Additionally, employers with employees in multiple states need to be sure that they are in compliance with various state wage reporting requirements.

NLRB Proposes Stricter Joint Employer Standard

As I reported earlier in the week, the NLRB has issued a notice of proposed rulemaking (NPRM) to rescind and replace the final rule entitled “Joint Employer Status Under the National Labor Relations Act,” which was published on February 26, 2020 and took effect on April 27, 2020.  The proposed rule would revise the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (NLRA or Act), are joint employers of particular employees within the meaning of section 2(3) of the Act. 

Notably, the NPRM would no longer require proof of “direct and immediate” control over workers, instead finding two entities to be a joint employer if they “share or codetermine” essential job terms, such as wages, benefits and other compensation. This means that “possessing” control, even where not exercised, could result in a joint employer finding. The new rule would state that “Possessing the authority to control is sufficient to establish status as a joint employer, regardless of whether control is exercised.  Exercising the power to control indirectly is sufficient to establish status as a joint employer, regardless of whether the power is exercised directly.  Control exercised through an intermediary person or entity is sufficient to establish status as a joint employer.”

Comments are due to the NLRB on or before November 7, 2022.

On the Subject of Joint Employer: OSHA

OSHA may be targeting staffing agencies (also known as temporary or supplied workers) – see its homepage. OSHA believes the staffing agency and the its client are joint employers of temporary workers and, therefore, “both are responsible for providing and maintaining a safe work environment for those workers.” Accordingly, OSHA believe that it can hold both entities “responsible for the violative condition(s) – and that can include lack of adequate training regarding workplace hazards.” Therefore, it’s a good idea to delineate which entity is responsible for safety and training and confirming that the client will disclose and advise on specific hazards at its locations.

Written by: Gordon M. Berger, Partner 

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