MacPac 8.0 Normal template



Recent Changes to California

and Federal Employment Laws

Kelly Bendell

Office of the General Counsel

of The University of Southern California

CHANGES TO CALIFORNIA EMPLOYMENT LAWS

I. PHYSICAL AND MENTAL DISABILITIES 1

A. Mitigating Measures Not Considered 1

1. New Standard 1

2. Comparison to Federal Law 1

3. Impact 1

B. Substantial Limitation Not Required 1

1. New Standard 1

2. Comparison to Federal Law 2

3. Impact 2

C. Broad Definition of Major Life Activities 2

1. New Standard 2

2. Comparison to Federal Law 2

3. Impact 2

D. Interactive Process an Independent Duty 2

1. New Standard 2

2. Comparison to Federal Law 2

3. Impact 3

II. PERSONAL LIABILITY FOR SEX HARASSMENT 3

A. New Standard 3

B. Comparison to Federal Law 3

C. Impact 3

1. Definition of what constitutes harassment remains the same 3

2. More lawsuits 3

3. Indemnification 4

III. WAGE AND HOUR PROVISIONS (Senate Bill 88) 4

A. Computer Software Professionals are Exempt from Overtime 4

1. Comparison to Federal Computer Professional Exemption 4

2. Requirements 4

3. Warning: Some Computer Software Employees are NOT Exempt from Overtime 5

B. All Exempt Employees Now Must Regularly and Customarily Exercise Discretion and Independent Judgment to Qualify 5

C. The Exclusion of Certain Registered Nurses From the Overtime Exemption Does Not Apply to Certified Nurse Midwives, Anesthetists and Practitioners 6

D. 30-Minute Meal Period 6

IV. WAGE AND HOUR PROVISIONS (Assembly Bill 2509) 6

A. Penalty for Violating Meal Period Rules 6

B. Wage/Hour Appeals 7

C. Employer Penalties for Issuing Checks to Employees Drawn on Nonexistent Accounts or Accounts with Insufficient Funds 7

D. Payroll Recordkeeping 7

E. Gratuities May Not be Deducted from Wages 7

V. EMPLOYEE EXPENSE REIMBURSEMENTS 7

VI. INSPECTION OF PERSONNEL FILES 8

CHANGES TO FEDERAL EMPLOYMENT LAWS

VII. NEW EEOC REGULATIONS REGARDING ADEA WAIVERS 9

A. Individuals Need Not Tenderback Settlement Proceeds While Challenging An ADEA Waiver 9

B. Tenderback Provisions Are Invalid 9

C. Covenants Not to Sue With Penalty Provisions Are Invalid 9

D. Effect of Invalid Provisions On The Remainder of the Agreement 9

E. Practical Effect of the Regulations 10

VIII. NEW OSHA ERGONOMICS STANDARD 10

A. Scope 10

B. Initial Action 10

C. Further Action 10

1. MSD Incident 11

2. Action Triggers 11

D. Additional Obligations 12

1. Quick Fix 12

2. Comprehensive Ergonomics Program 12

E. Grandfather Clause 14

F. Compliance Deadlines 14

G. Enforcement 14

IX. NEW OFCCP REGULATIONS 15

A. Assignment of Remote Associates 15

B. Option to Organize by Functional Unit, not Establishment 16

C. Workforce Analysis/Organizational Profile 16

D. Job Group Analysis 16

E. Availability Analysis 17

F. Utilization Analysis 17

G. Goals 17

H. Additional Requirements 17

I. Compensation Analysis 18

J. Equal Opportunity Survey 18

K. Glass Ceiling Reviews 18

X. NEW EEOC COMPLIANCE MANUAL SECTION REGARDING COMPENSATION DISCRIMINATION 18

CHANGES TO CALIFORNIA EMPLOYMENT LAWS

In late September 2000, Governor Gray Davis signed into law a series of amendments to the California Fair Employment and Housing Act ("FEHA") and the wage and hour and other provisions of the California Labor Code. Although signed with little fanfare and publicity, the amendments significantly expand certain employee rights under California laws. Most of these new provisions took effect on January 1, 2001; some took effect immediately.

PHYSICAL AND MENTAL DISABILITIES

Assembly Bill 2222 ("AB 2222") significantly broadened the protections afforded under the FEHA to mentally and physically disabled California employees; it took effect on January 1, 2001. AB 2222 clarified the FEHA's definitions of "mental disability" and "physical disability" and extended to job applicants and employees significantly greater protections under state law than under the federal Americans with Disabilities Act ("ADA"). The changes, which reflect the Legislature's determination that the ADA provides only a "floor of protection" and its intention that state law provide "broader coverage" than federal law, include the following:

Mitigating Measures Not Considered

New Standard: Whether one is disabled "shall be determined without regard to any mitigating measures." Cal. Gov’t Code §§ 12926(i)(1)(A)(k); 12926(i)(1)(B)(i); and 12926.1(c).

Comparison to Federal Law: That standard is contrary to the United States Supreme Court's rulings in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (under the ADA, measures to correct or mitigate an impairment must be taken into account when determining whether a person is substantially limited in a major life activity).

Impact: One who successfully controls an impairment with medication, corrective lenses, or a prosthesis, for example, although not protected under the ADA, nevertheless may be disabled under the FEHA.

Substantial Limitation Not Required

New Standard: California law now extends protection to individuals with mental and physical impairments that "limit" a major life activity. Under the amended statute, an impairment "limits" a major life activity if it merely makes the achievement of the major life activity "difficult." One need not be "substantially limited" in a major life activity in order to be protected under the FEHA. Cal. Gov’t Code §§ 12926(i)(1)(B); 12926(k)(1)(B)(ii); and 12926.1(c) and (d).

Comparison to Federal Law: Under the ADA, mere limitations in one's ability to perform a major life activity do not trigger the Act's protections; the limitations must be substantial. A substantial limitation is one that renders an individual unable to perform a major life activity that the average person in the general population can perform, or significantly restricts the condition, manner or duration under which the individual performs the activity as compared to the average person in the general population.

Impact: While California courts will decide what the new law means, based on its language, an individual who finds it "difficult" to work, for example, may be protected under California law. So too may individuals who have conditions that make it "difficult" for them to achieve any other major life activity, such as sleeping or walking.

Broad Definition of Major Life Activities

New Standard: Major life activities "shall be broadly construed" and shall include "social activities," as well as physical and mental activities. In addition, "working" is a major life activity even if the limitation implicates only one particular job, rather than "a class or broad range of employment." Cal. Gov’t Code §§ 12926(i)(1)(C); 12926(k)(1)(B)(iii); and 12926.1(c).

Comparison to Federal Law: Under federal law, an employee is substantially limited in the major life activity of working only if he or she is unable to perform a class of jobs or a broad range of jobs.

Impact: Interacting with others will likely now qualify as a major life activity under the FEHA. Employees who find it "difficult" to get along with co-workers, or feel socially isolated in the workplace, may assert that they are entitled to protection under state law.

Interactive Process an Independent Duty

New Standard: It is unlawful for an employer not to engage in a timely, good faith, interactive process with an employee or applicant to determine effective reasonable accommodations in response to the employee's accommodation request. Cal. Gov’t Code §§ 12940(n) and 12926.1(e).

Comparison to Federal Law: Under the ADA and the FEHA, courts have found that employers show good faith in the "interactive process" by meeting with the employee who asks for the accommodation, requesting limited information about the impairment and what limitations the employee has, asking the employee what accommodation he or she specifically needs, and offering to discuss available alternatives if the requested accommodation creates an undue hardship.

Under federal law, many courts have held that an employer's failure to engage in the interactive process is not a "per se" violation, and some have held that an employer that acts in bad faith in the interactive process is liable only if the jury could reasonably conclude that there is a reasonable accommodation which would have enabled the employee to perform the job.

Impact: Under AB 2222, the FEHA no longer conditions employer liability on the employee's ability to perform his or her job with an accommodation; any request now triggers the employer's duty to respond in good faith. Accordingly, California law will extend greater protection to applicants and employees requesting accommodations and may be interpreted by the courts to impose liability on employers even if no reasonable accommodation exists.

PERSONAL LIABILITY FOR SEX HARASSMENT

New Standard: As of January 1, 2001, an employee of an employer covered by the FEHA may be held personally liable for any unlawful harassment, regardless of whether or not the employer also is liable because it knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Cal. Gov’t Code § 12940(j)(3).

Assembly Bill 1856 ("AB 1856") effectively reversed the California Supreme Court's decision in Carrisales v. Department of Corrections, 21 Cal. 4th 1132, 90 Cal. Rptr. 2d 804 (1999) (a non-supervisory co-worker is not personally liable for sexual harassment under the FEHA; "If the Legislature believes it necessary or desirable to impose individual liability on coworkers, it can do so.").

Comparison to Federal Law: The Carrisales decision was consistent with rulings in federal courts which have held repeatedly that an individual employee, whether supervisory or nonsupervisory, cannot be personally liable for hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).

Impact:

Definition of what constitutes harassment remains the same: The proponents of AB 1856 noted in the State Senate that the amendment does not change existing law as to what constitutes harassment. "People will not be able to sue their coworkers for any little thing they find offensive. In order to create liability under FEHA, the harassment must be so severe that it produces an abusive working environment. This bill does nothing to change that standard." Senate Rules Committee, Third Reading.

More lawsuits: Opponents of AB 1856 argued, in part, that the amendment would lead to more lawsuits against individual employees, add to the already high cost of employment litigation, and interfere with an employer's ability to investigate and remedy incidents of harassment. Id.

Indemnification: AB 1856 will be of particular interest to employers in light of the California Court of Appeal's recent ruling in Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096, 93 Cal. Rptr. 2d 425 (2000) (an employee who is sued by a coworker for sexual harassment is entitled to indemnification from his employer of the legal costs incurred in successfully defending the sexual harassment action).

AB 1856, coupled with the indemnification provision in California Labor Code Section 2802, underscores for California employers the importance of establishing and communicating unambiguous sexual harassment policies, and ensuring and documenting that all employees regularly participate in employer-sponsored sexual harassment prevention training.

WAGE AND HOUR PROVISIONS (Senate Bill 88)

Senate Bill 88 ("SB 88") was designated as urgency legislation and took effect on September 19, 2000. It codified changes in the rules regarding meal times, exempt status in general, and the exempt status of computer professionals in particular. The new Industrial Welfare Commission ("IWC") wage orders, which took effect on October 1, 2000, likewise reflect these changes.

Computer Software Professionals are Exempt from Overtime

Comparison to Federal Computer Professional Exemption

Although California employers hoped that SB 88 would create a computer professional exemption comparable to the federal computer professional exemption, the Act does not fulfill those expectations.

First, the exemption applies only to employees in the "computer software field," thus excluding computer professionals whose focus is computer hardware. Cal. Lab. Code § 515.5(b)(3).

Second, the list of skills required to qualify for the computer software exemption are far more detailed than those contained in the broader federal rule.

Third, the hourly rate of pay necessary to qualify for the exemption is $41, or approximately $85,000 per year. Not only is this figure significantly above the federal hourly requirement of $27.63, which has remained unchanged since 1992, but the state rate will increase each October. Cal. Lab. Code § 515.5(a)(3).

Requirements

To qualify for the California exemption, the employee must meet the following duties test:

be primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment (Cal. Lab. Code § 515.5(a)(1)); and

be primarily engaged in duties constituting the application of systems analysis techniques and procedures, or the design, development, documentation, analysis, creation, testing or modification of computer systems or programs or computer programs related to the design of software or hardware for computer operating systems (Cal. Lab. Code § 515.5(a)(1)(A-C)); and

the employee also must be highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering. Cal. Lab. Code § 515.5(a)(2).

3. Warning: Some Computer Software Employees are NOT Exempt from Overtime

Under SB 88, the following types of employees do not fall within the scope of the special computer software professional exemption, even if they utilize some computer skills in the performance of their job duties: trainees; entry level employees; operators; employees engaged in the repair/maintenance of computer hardware; engineers who are dependent upon computer-aided design software but who are not in a computer systems analysis or programming occupation; writers; and computer software professionals who apply systems analysis techniques and procedures in the motion picture, television or theatrical industries. Cal. Lab. Code § 515.5(b)(1-6).

B. All Exempt Employees Now Must Regularly and Customarily Exercise Discretion and Independent Judgment to Qualify

Prior to passage of SB 88, executive, administrative and professional employees were exempt from the overtime compensation requirements if they were primarily engaged in the duties that met the test of the exemption and earned a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.

SB 88 added the requirement that employees must customarily and regularly exercise discretion and independent judgment in order to qualify as exempt. Thus, an employee who occasionally is primarily engaged in exempt duties, but is not customarily and regularly so engaged, will not qualify.

Note that there is certain to be confusion over the interpretation of this requirement, because the new Act uses both the words "primarily " and "customarily." The new wage orders define primarily to mean "more than one-half of the employee's work time," but the term "customarily" is not defined.

C. The Exclusion of Certain Registered Nurses From the Overtime Exemption Does Not Apply to Certified Nurse Midwives, Anesthetists and Practitioners

SB 88 amended the Labor Code to allow employers to classify certified nurse midwives, certified nurse anesthetists and certified nurse practitioners as exempt from the payment of overtime compensation as long as they are primarily engaged in performing duties for which the respective certification is required and they meet the minimum monthly salary requirement. Cal. Lab. Code § 515(f)(2)(A-D).

30-Minute Meal Period

SB 88 amended the Labor Code to provide that, to the extent the IWC adopts or amends wage orders pertaining to meal periods, it may not do so in a way that conflicts with current law that requires an employee working more than five hours in a day to receive a meal period of at least thirty minutes, and an employee working more than 10 hours in a day must receive a second meal period of at least 30 minutes. Cal. Lab. Code § 512(a).

WAGE AND HOUR PROVISIONS (Assembly Bill 2509)

Assembly Bill 2509 ("AB 2509"), which took effect on January 1, 2001, made a number of significant amendments to the California Labor Code, including the following:

Penalty for Violating Meal Period Rules

As discussed above, the California Labor Code mandates unpaid meal periods. Additionally, all employees who work an eight hour shift are entitled to two 10 minute rest periods. Under the amended statute, if an employer deprives an employee of the required meal or rest period, the employer must pay the employee a penalty of one hour's pay at the employee's regular hourly rate of pay for each workday that the employee misses a meal or rest period. Cal. Lab. Code § 226.7.

Of course, the penalty would not apply if the meal period was properly waived. Current law provides that the meal period may be waived by mutual consent of the employer and the employee if the total work period for the day is no more than six hours. If the total work period for the day is more than 10 hours but less than 12, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period is not waived. Cal. Lab. Code § 512.

Finally, note that this obligation is codified as Labor Code Section 226.7 and not within Labor Code Chapter 500. This placement creates an issue regarding the scope of the collective bargaining exemption in Labor Code Section 514, because that exemption expressly limits its scope to matters found within Chapter 500.

Wage/Hour Appeals

Under the new law, an employer that appeals an award, order or decision by the Labor Commissioner is required to post a bond for the amount of the award. Further, while an employee who prevails on a claim for unpaid overtime wages or unpaid minimum wages is entitled to recover attorneys' fees from the employer, the new law bars such a recovery for employers. The result, of course, being that there is no longer any risk related to the filing of a meritless claim by an employee or former employee. Cal. Lab. Code § 2673.1.

C. Employer Penalties for Issuing Checks to Employees Drawn on Nonexistent Accounts or Accounts with Insufficient Funds

An employer may be liable for a penalty up to 30 days' pay and fringe benefits for issuing checks to employees drawn on nonexistent accounts or accounts with insufficient funds unless the employer can prove, to the Labor Commissioner's satisfaction, that the violation was unintentional. The employee must attempt to cash the check within 30 days of its issuance. Cal Lab. Code § 98(a).

Payroll Recordkeeping

While most employers currently provide employees with an itemized wage statement listing all applicable hourly rates and the number of hours worked by the employee at each rate, the new law requires this be done at least semi-monthly with the payment of wages. For piece-rate employees, the employer must disclose the number of piece-rate units and the applicable piece-rate for employees paid on that basis. Knowing and/or intentional noncompliance with this requirement may result in penalties of up to $4,000 per employee and payment of an employee's attorneys' fees. Cal. Lab. Code § 226.

Gratuities May Not be Deducted from Wages

AB 2509 amended the Labor Code to provide that gratuities are the sole property of the employee(s) to whom it was paid. Accordingly, employers may not deduct gratuities intended for employees from wages otherwise owed to the employee. Further, employers must remit to employees, no later than the next regular payday, the full amount of gratuities paid by credit card. The employer may not deduct credit card fees from the gratuity left for the employee. Cal. Lab. Code § 351.

EMPLOYEE EXPENSE REIMBURSEMENTS

Senate Bill 1305 ("SB 1305") also took effect on January 1, 2001. This law amended California Labor Code Section 2802. Section 2802 previously required employers to reimburse employees for expenditures and losses incurred in connection with their employment. SB 1305 increased the penalties to employers who violate this law. Employees will be able to recover interest, costs and attorneys' fees if they are successful in a claim for unreimbursed business expenses. Cal. Lab. Code § 2802.

INSPECTION OF PERSONNEL FILES

Senate Bill 1327 amended Labor Code Section 1198.5 to expand the right of employees to review their personnel files. Before Section 1198.5 was amended, it provided that employees had the right to inspect personnel files which are used or have been used to determine that employees’ qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. The amended Section provides that employees may inspect “the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.”

The requirements of Section 1198.5 do not apply to (1) records relating to the investigation of a possible criminal offense, (2) letters of reference, and (3) ratings, reports or records that were (i) obtained prior to the employee’s employment, (ii) prepared by identifiable examination committee members, or (iii) obtained in connection with a promotional examination.

The amended Section 1198.5 raises the concern that employees may have the right to review documents relating to investigations of harassment and other misconduct claims with only two exceptions: (1) attorney/client privileged portions and (2) records relating to the investigation of possible criminal offenses. If so, this Section creates a difficult question: how employers can perform a careful and thorough internal investigation without having to disclose all of their notes to the accused employee.

CHANGES TO FEDERAL EMPLOYMENT LAWS

NEW EEOC REGULATIONS REGARDING ADEA WAIVERS

The EEOC has issued new regulations, codified at 29 C.F.R. § 1625.23, that employers will have to take into account when they ask an employee to release a claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. The regulations purport merely to codify the Supreme Court's decision in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), but are far more expansive.

A. Individuals Need Not Tender Back Settlement Proceeds While Challenging An ADEA Waiver

The regulations provide that an individual alleging that a waiver agreement, covenant not to sue, or other equivalent agreement was not knowing and voluntary under the ADEA is not required to tender back the consideration given for that agreement before filing either a lawsuit or a charge of discrimination.

Thus, an employee who challenges a release under the ADEA will be able to keep the consideration that he or she received for signing the release and sue the employer for the very claims that he or she released.

Tender Back Provisions Are Invalid

A provision in the release requiring the employee to tender back the consideration as a pre-condition to challenging the release under the ADEA will be unenforceable -- even if the release is eventually determined to be valid.

Covenants Not to Sue With Penalty Provisions Are Invalid

The regulations invalidate all provisions in ADEA releases that require the employee to pay attorneys' fees and/or damages resulting from the breach of a covenant not to sue. Under the new regulations, the only permissible use of a covenant not to sue will be as an affirmative defense to a lawsuit that was filed in violation of such a covenant. Thus, while the regulations allow employers to continue to use covenants not to sue, they ensure that employees who violate such covenants will be immune from financial penalties that might deter them from filing an improper lawsuit in the first place.

Effect of Invalid Provisions On The Remainder of the Agreement

It is not clear whether a tender back provision or a covenant not to sue with a costs, fees or damages provision will invalidate the entire release. The regulations are silent on that issue, but the EEOC's commentary on the regulations states that "there is a strong argument that inclusion of an invalid provision in an ADEA waiver agreement … should invalidate the entire waiver."

Practical Effect of the Regulations

In light of the regulations, employers have the following options:

The first option requires employers to eliminate tender back provisions and covenants not to sue with financial penalties from their standard release agreements (at least to the extent that they apply to claims under the ADEA), thereby extending a "free ride" to employees who wish to sue them under the ADEA after signing valid releases.

Alternatively, employers can continue to use such provisions with the hope that the courts will reject the new regulations. An employer choosing the latter option will assume the risk that a court may uphold the regulations and invalidate the entire release.

VIII. NEW OSHA ERGONOMICS STANDARD

The Occupational Safety and Health Administration (OSHA) has issued new ergonomics standards, codified at 29 C.F.R. § 1910.900, which impose a complex bureaucratic maze on millions of manufacturing, service, financial, educational and other general industry employers. Under the new regulations, U.S. firms have to establish comprehensive ergonomics programs if just two of their employees claim to have experienced a sign or symptom of a "musculoskeletal disorder" (MSD), which is defined as a disorder of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, or spinal discs, such as carpal tunnel syndrome or low back pain. Although the regulations became effective on January 16, 2001, most of the provisions do not take effect until after October 15, 2001.

Scope

The standard applies to all U.S. employers except those in construction, maritime or agriculture.

Initial Action

The standard requires covered employers to provide information in written or electronic form to every employee about MSDs, how to report them, the kinds of risk factors, jobs and work activities associated with MSD hazards, and the requirements of OSHA's Ergonomics Standard.

Further Action

The standard imposes a host of confusing requirements on employers to determine whether they have further obligations. First, employers must determine whether an "MSD incident" has occurred. If so, employers must then determine if an employee experiencing an "MSD incident" has a job that "routinely involves, on one or more days a week, exposure to one or more relevant risk factors" at or above one or more of 12 defined "action triggers."

MSD Incidentt

An "MSD Incident" occurs when an employer determines that one employee has experienced:

a work-related MSD that requires a day away from work, restricted work, or medical treatment; or

an MSD sign (e.g., decreased range of motion or grip strength) or MSD symptom (e.g, pain, numbness or tingling) that persists for seven consecutive days.

"Work-related" means that working conditions "caused or contributed to an MSD or significantly aggravated a pre-existing MSD."

The standard allows employers to obtain an opinion from a health care professional (HCP) to help determine work-relatedness and whether any work restrictions are appropriate.

Impact: At the same time, the standard prohibits an HCP from disclosing to the employer information about non-work related factors that may have caused or contributed to the employee's condition. This limitation will preclude employers from making fully informed decisions as to the causes of a worker's condition and the appropriate remedial measures.

Action Triggers

If an employee experiences an MSD incident, the employer must determine whether the employee's job "routinely" (on one or more days per week) exceeds one or more of 12 "action triggers" involving such issues as repetition, force, awkward postures, contact stress and vibration.

These triggers include using a keyboard for more than four hours a day, kneeling or squatting for two hours per day, and numerous lifting thresholds.

Impact: This analysis will consume substantial time and resources (e.g., measuring the duration and frequency of various activities for each individual worker), and pose innumerable difficulties for employers who lack a full-time ergonomist. Managers will struggle to define when a job involves "the same motions every few seconds," a "cycle of motions" more than twice per minute, use of a keyboard in a "steady" manner, lifting "at arm's length," pushing/pulling "with more than 20 pounds of initial force," "pinching," "gripping force" equivalent to 10 lbs., "high" vibration levels, or working with the back, neck or wrists "bent or twisted."

Additional Obligations

If an employer determines that an employee has experienced an MSD incident, and that the employee's job routinely exceeds one or more of the action triggers, the employer must either follow the standard's "quick fix" provisions, or develop and implement a comprehensive ergonomics program.

Quick Fix

If within the previous 18 months, an employer has had only one MSD incident in a given job category, and no more than two incidents overall, the employer may elect to provide a "quick fix" instead of implementing a comprehensive program. The so-called quick fix option, however, entails most of the actions required as part of a comprehensive ergonomics program.

These obligations include providing the employee who experienced an MSD incident with a) a medical evaluation, follow-up and medical management; b) access to HCPs; c) temporary work restrictions (if recommended by the HCP); and d) wage replacement for up to 90 days.

In addition, the employer must consult with employees in the same job category, ask them to recommend remedial measures, observe them performing their jobs, implement controls that reduce MSD hazards to levels below those in the standard's hazard identification tools within 90 days, train employees in the use of these controls, review the jobs within 30 days after implementing the controls to assess whether MSD hazards have been sufficiently reduced, and keep records of the quick fix process for each job to which it is applied. If the MSD hazard levels are not sufficiently reduced, the employer must implement a comprehensive ergonomics program.

Comprehensive Ergonomics Program

Employers who experience an MSD incident and find that one or more of the action triggers has been met, but who are not eligible for the quick fix option, must implement a comprehensive ergonomics program. The program must include:

Management leadership, including assignment of program responsibilities, provision of necessary authority and resources, encouragement of early reporting of signs and symptoms and employee participation in the program, and periodic communication with employees about the program;

Employee participation, including a system for employees to report MSD signs, symptoms, and hazards, and receive responses; provision of information to employees regarding the standard, MSD hazards, signs and symptoms, and the employer's program; and employee involvement in the development, implementation, and evaluation of the program;

Job hazard analysis of all job categories in which an MSD incident has occurred;

using either one of the hazard identification tools referenced in the standard, a trained ergonomist, or "any other reasonable method that is appropriate to the job and relevant to the risk factors being addressed," and

including consultation with affected employees, observation of employees performing affected jobs, and evaluation of the magnitude, frequency and duration of exposure to MSD risk factors;

Reduction of MSD hazards either below the levels set forth in one of nine hazard identification tools (which were neither drafted by OSHA, nor intended to impose mandatory obligations, and which may require an ergonomist to decipher and apply), or (if such a reduction is not possible) to the extent feasible, using engineering controls (e.g., redesigning workstations, equipment, or processes), work practice controls (changing the way work is performed), or administrative controls (e.g, job rotations or changing the pace of work); implementation of "initial" controls that "substantially reduce" the exposures within 90 days of determining that an action trigger has been met; implementation of "permanent" controls within two years of such determination (or January 13, 2005, whichever is later); and tracking progress towards MSD hazard reduction goals (including consultation with affected employees);

MSD management for employees who experience an MSD incident, including access to HCPs, use of a tie-breaking procedure in the event that two HCPs reach different conclusions, a written medical evaluation, follow-up, and adherence to any work restrictions or time off recommended by an HCP;

Wage replacement (called "work restriction protection") for employees unable to work their regular jobs due to an MSD incident, including 100 percent wage replacement for workers on restricted duty (even if the light duty job they are performing pays less), and 90 percent wage replacement for workers unable to work, for up to 90 days;

Training for employees in jobs covered by the program, on an initial basis as well as at least every three years thereafter, including training regarding the standard, the employer's program, MSD signs and symptoms, the reporting system, MSD hazards and risk factors in each employee's job, the employer's hazard abatement plan and timetable, MSD hazard controls, and employee involvement in evaluating the effectiveness of controls;

Program evaluation "when you have reason to believe that the program is not functioning properly" and at least every three years, including consultation with employees, review of each program element, a determination as to whether the program is achieving positive results, and prompt correction of any program deficiencies; and

Record keeping, including employee reports, employer responses, job hazard analyses, hazard control measures, quick fix processes, program evaluations and HCP opinions.

Grandfather Clause

The standard includes a grandfather clause for ergonomics programs implemented before November 14, 2000. Qualifying programs are exempted from some of the standard's requirements.

In order to qualify, however, a program must include management leadership; an MSD reporting system; prompt responses to MSD reports; regular communication with employees; employee participation in the implementation, evaluation and future development of the program; job hazard identification and analysis; feasible engineering, work practice and administrative controls for job hazards; reduction of job hazards below the levels in the standard's hazard identification tools or to the extent feasible; evaluation of controls; employee training; program evaluation; and correction of identified program deficiencies.

In short, to qualify for the grandfather clause's exemption from some of the standard's requirements, employers must have ergonomics programs that comply with virtually all of the very same requirements. Even those programs that qualify must have included, by January 13, 2001, extensive medical management procedures, temporary work restrictions, and up to 90 days of wage replacement for workers experiencing MSDs.

Compliance Deadlines

The standard's provisions become effective on October 14, 2001. Most of the standard's obligations are required within certain time periods (seven days to two years) after an employer determines that an action trigger has been met. The standard provides separate deadlines for implementing permanent MSD hazard controls (January 13, 2005).

Enforcement

OSHA inspectors will experience as much uncertainty and confusion as employers in attempting to apply the standard's bureaucratic maze and vague terminology to the diverse workplaces found in the U.S. Although the agency will distribute a compliance directive to OSHA compliance officers before enforcement begins, employers can expect significant variations in enforcement.

Many OSHA inspectors may well assume that if MSDs are occurring at a workplace, the employer's program must be deficient, despite the agency's statement that "the occurrence of an MSD in a problem job is not in itself a violation of this standard." Although OSHA is known for its complex, bureaucratic regulations, the Ergonomics Standard may well cause more confusion in U.S. workplaces than any previous OSHA rule, given the breadth and bureaucratic complexity of the Ergonomics Standard, and the inherently difficult issues of MSD work-relatedness (causation) and identification of effective remedial measures.

The standard may force some employers to devote needed attention to MSDs, but in many workplaces employers may find themselves diverting their focus from making jobs safer to deciphering and complying with the Ergonomics Standard's tangled regulatory maze.

IX. NEW OFCCP REGULATIONS

In the past year, the Office of Federal Contract Compliance Programs (OFCCP) revised its regulations at 41 C.F.R. part 60-2, which govern the development, implementation and maintenance of affirmative action plans (“AAPs”) for nonconstruction (supply and service) government contractors. Though heralding its revised regulations as a benefit to contractors due to the simplification of the requirements of an affirmative action plan structure, and the simplification of the required annual availability analysis (the “eight factor test”) of women and minorities, the OFCCP in fact created new burdens and hazards for contractors, including for example:

• imposing its very broad definition of applicant (“anyone who expresses an interest in employment”), through codification of its Equal Opportunity Survey (“EO Survey”); and

• requiring contractors to identify compensation problem areas, monitor those problem areas, and provide the OFCCP all records related to the problem areas during a compliance evaluation.

These changes, along with other significant revisions to the regulations, are addressed in more detail as follows:

Assignment of Remote Associates

The new regulations clarify in which establishment an associate must be counted, where the associate is loaned from an establishment to work elsewhere. Generally, the associate should be included in the establishment where the associate works, unless the associate’s manager is located at another establishment. If the manager is located at another establishment, then the associate should be included in the manager’s establishment. If there are 50 or fewer associates in the establishment, then employers must either (1) create a separate AAP for the establishment; (2) include the associate where the personnel function is located; or (3) include the associate where the manager is located. Whenever an associate is included in a location other than where he or she works, the employer must annotate the AAP to show the inclusion in a non-work location.

B. Option to Organize by Functional Unit, not Establishment

The new regulations allow employers to prepare AAP’s by functional unit, instead of by establishment. This change is unlikely to have any real effect, however, until the agency modifies its enforcement techniques to enable it to handle such a change. The new regulation provides that an employer may organize its AAP’s by functional unit only if it negotiates and enters into an agreement with the OFCCP to do so. Yet, there is little reason to do so, because the regulations make clear that the agency will continue to perform audits by establishment, not by functional unit, without regard to whether the AAP is prepared by functional unit. Thus, practically speaking, the employer who opts to reorganize its AAP’s by functional unit will have to maintain an AAP using both formats until OFCCP modifies it compliance review procedures to enable its compliance officers to perform audits under the new format.

Workforce Analysis/Organizational Profile

The new regulation provides than an employer may choose to either: 1) prepare an Organizational Profile; or 2) continue to use the same workforce analysis format as before. The organizational profile differs from the workforce analysis because it is set up like an organizational chart, by functional unit, based on the employer’s management reporting structure. For each “box” in the organization chart, the employer must provide:

name of unit

title, gender, race, ethnicity of supervisor

total male and female

4. male and female, broken down by the following EEO-1 categories: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives.

Unlike the workforce analysis, the organizational profile does not require salary range information. The workforce analysis is organized by job title, with gender, EEO-1 and wage range information.

Job Group Analysis

The new regulations that employers with less than 150 employees may use EEO-1 categories as job groups, which are the following nine occupational groups: officials and managers, professionals, technicians, sales, office and clerical, craft workers (skilled), operatives (semiskilled), laborers (unskilled), and service workers.

Availability Analysis

The changes in the new regulations with regard to the availability analysis are more form than substance. The eight factor analysis was reduced to two factors: (1) the percentage of minorities or women with requisite skills in the reasonable recruitment area; and (2) the percentage of minorities or women among those promotable, transferable and trainable within the contractor’s organization. This eliminates categories such as the overall workforce and the unemployment force. Practically speaking, the two remaining factors are the ones that employer’s principally relied on previously.

The agency also rejected comments suggesting that it cease accepting calculations based on total minority population, and require instead that employers look at each race separately.

Utilization Analysis

The OFCCP also made nominal changes to the utilization analysis. The agency changed the name of this plan section to “Comparing incumbency to availability,” and extended the requirement of preparing this section to all job groups, not just “major” job groups as under the old regulations.

Goals

There were no significant changes to the goals section, except that language was added clarifying that the establishment of a goal does not constitute an admission of discrimination, and an employer need not institute racial preferences. As noted below, timetables for goals were deleted.

Additional Requirements

The OFCCP also deleted several of the “additional requirements” in the former regulation:

reaffirmation of EEO policy

formal internal and external dissemination of EEO policy

timetables for goals

4. active support of local community action and community service programs

The agency retained several other of the “additional requirements:”

responsibility to implement AAP

identification of problem areas (movement and utilization)

action-oriented programs to correct problems and attain goals

internal audit and reporting

Compensation Analysis

The most significant change in the regulations is buried in the “additional requirements” section. The OFCCP added compensation into the list of areas that must be examined for identification of problem areas. This has the effect of adding the requirement of a compensation analysis into the APP. Unlike the other AAP sections, which may use combined minority data, the compensation analysis must be prepared separately by race, gender and ethnicity.

Equal Opportunity Survey

The OFCCP included its new Equal Opportunity Survey in the regulations and specified that it will send the survey to a substantial portion of all nonconstruction contractors each year. Although the regulation includes general guidelines as to the content of the survey, such as that it will seek information about applicants, hires, promotions, terminations, compensation and tenure, by race and gender, it does not provide specifics about the format or content of the survey. Although the regulation specifies that the surveys may be prepared by job group, the agency has not prepared a job group-based form yet, and the agency web site states that an employer cannot submit a job group-based survey except electronically. The OFCCP will use the survey as a tool to identify contractors to audit.

Although the regulation does not itself contain the OFCCP’s broad “applicant” definition, the EO Survey form includes it. In finalizing the regulations, the OFCCP rejected comments requesting that it narrow the applicant definition it uses.

Glass Ceiling Reviews

The new regulations also contain a new provision authorizing glass ceiling reviews. This new provision specifically enables the expansion of glass ceiling reviews outside of a headquarters facility.

X. NEW EEOC COMPLIANCE MANUAL SECTION REGARDING COMPENSATION DISCRIMINATION

The EEOC issued new compliance manual standards, including “Section 10: Compensation Discrimination,” in the past year. As the EEOC directive preceding the Section 10 instructs, its purpose is to provide guidance and instructions for investigating and analyzing claims of compensation discrimination under each of the statutes that the EEOC enforces, including the Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Equal Pay Act. The new standards detail the manner in which the EEOC identifies compensation differences and determines whether discrimination or factors other than sex cause them. This information may be helpful to employers in reviewing their own policies and practices to identify and resolve potentially problematic pay disparities and in responding to EEOC investigations.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download