Oregon Law That Imposes Scheduling and Working Hours Obligations on Employers Takes Effect July 1, 2018

Senate Bill 828, enacted by the 2017 Legislative Assembly, establishes work scheduling standards for certain employers in retail, hospitality, or food services industries that have at least 500 employees worldwide. The majority of the bill becomes effective July 1, 2018.
 
Q. What is a covered employer?
 
A.  Covered employers include employers and successor employers in retail, hospitality, or food services establishments that employ 500 or more employees worldwide, including chains and integrated enterprises.
 
To determine the number of employees employed by an employer, the calculation is based on the average number of employees employed on each work day during each of 20 or more workweeks in the current calendar year or immediately preceding calendar year.
 
Q. Who is a covered employee?
 
A. An employee who is employed in a retail establishment, a hospitality establishment, or a food service establishment that provides services related to retail trade, hotels and motels, or food services.
 
Q. Are any employees not covered?
 
A. Yes. Salaried employees who are exempt from minimum wage, workers supplied by a worker leasing company,and employees of a business that provides services to or on behalf of an employer, are not covered by this law.
 
Q. What does the law require?
 
A. Good faith estimate of work schedule.  Employers must provide a new employee a written good faith estimate of the work schedule at the time of hire that:
·       States the median number of hours the employee is expected to work in an average month;
·       Explains the voluntary standby list;
·       Explains whether the employee who is not on a standby list may expect to work on-call shifts, and if so, sets forth an objective standard for when an employee may be expected to work on-call shifts if the employee is not on the standby list; and
·       May be based on prior year schedule if it is a good-faith estimate of seasonal or episodic work.
 
Voluntary standby list. Employers may maintain a voluntary standby list of employees willing to work additional hours due to unanticipated customer needs or unexpected absences if listed employees have requested or agreed in writing and the employer notifies each employee, in writing:
·       That the list is voluntary and lays out how to be removed from the list;
·       How the employer will notify standby list employees of additional hours and how to accept the additional hours;
·       That the employee is not required to accept the additional hours offered; and
·       That an employee on the standby list is not eligible for additional compensation for changes to the employee’s written work schedule resulting from acceptance of additional hours as a result of being on the list.
 
Advance notice of work schedule. The employer must provide an employee with a work schedule, in writing, at least seven calendar days before the first day on the schedule (14 days on and after July 1, 2020). The work schedule must be posted in a conspicuous and accessible location.
 
The employer must provide a written work schedule that runs through the last date of the posted schedule to:
·       A new employee on or before first day of work; or
·       An existing employee on the first day of work after a leave of absence.
 
The written work schedule must include all work shifts and on-call shifts for the work period.
If the employer requests changes to the written work schedule after the advance notice is given:
 
·       Employer must provide the employee with timely notice of the change; and
·       The employee may decline any work shifts not included in the employee’s written work schedule.
 
At any time after the advance notice has been given, an employee may request in writing that the employer add the employee to work shifts or on-call shifts without penalty to employer.
 
Right to rest between shifts. Unless the employee requests or consents to work such hours, the employer may not schedule or require an employee to work during:
·       The first 10 hours following the end of a previous calendar day’s work or on-call shift; or
·       The first 10 hours following the end of a work or on-call shift that spanned two calendar days.
 
If an employee works during the first 10-hour periods as listed above, the employer must compensate the employee for each hour or portion of an hour that the employee works at the rate of one and one-half times the employee’s regular rate of pay. This premium pay provision does not apply to any hour or portion of an hour worked during which the employee is providing offsite repair assistance to a motorist with a disabled vehicle (roadside assistance).
 
Right to input into work schedule. At time of hire and during employment, an employee may identify any limitations or changes in work schedule availability and may also request not to be scheduled for work shifts during certain times or at certain work locations. While an employer may not retaliate against an employee for making such a request, the employer is under no obligation to grant the employee’s request.
 
Compensation for work schedule changes. An employer is required to provide compensation to an employee for each employer-requested change that occurs to a written work schedule without advance notice (seven days effective July 1, 2018; 14 days starting July 1, 2020), as follows:                                         
·         One hour at the regular rate of pay, in addition to wages earned when the employer:
o   Adds more than 30 minutes of work to the employee’s shift;
 
o   Changes the date or start time or end time of the employee’s work shift with no loss of hours; or
 
o   Schedules the employee for an additional work or on-call shift.
 
·         One-half times the employee’s regular rate of pay, per hour, for each scheduled hour that the employee does not work when the employer:
 
o   Subtracts hours from the employee’s work shift before or after the employee reports for duty;
 
o   Changes the date or start time or end time of the employee’s shift, resulting in a loss of work shift hours;
 
o   Cancels the employee’s work shift; or
 
o   Does not ask the employee to perform work when the employee is scheduled for an on-call shift.
 
  Q. What are the notice and posting requirements?
A. Employers must display a poster, which is developed by the Bureau of Labor and Industries, giving notice of the rights and responsibilities of this law. The poster must be posted in a conspicuous place at the workplace or provided on an individual basis if displaying the poster is not feasible. To access the poster, you may click on our LIST OF ADDITIONAL POSTING REQUIREMENTS then click on your state. All In One Poster Company has provided this list of downloadable notices that may be posted alongside our Oregon and Federal Combination Poster
 
Also, the employer is required to post the written work schedule in a conspicuous and accessible place, in English and in the language the employer typically uses to communicate with the employees.
 
Employers are required to provide employees on a standby list notice of additional hours by:
 
·       In-person conversation;
   
·       Telephone call;
  
·       Email;
  
·       Text message; or
  
·       Other electronic or written format.
   
Q. What if an employee wants to work extra shifts?
 
A. At any time after the advance notice of written work schedule is made, an employee may request in writing that the employer add the employee to more shifts. Changes to the written work schedule resulting from these written requests are not subject to the advance notice requirements of this law.
 
Q. What if an employee asks not to be scheduled?
 
A. An employee may decline any work shifts not included in the employee’s written work schedule and may request, in writing, to be added to one or more work shifts or on-call work shifts. In addition, an employee may request not to be scheduled for work shifts during certain times or at certain locations, but an employer may require the employee to provide reasonable verification of the need for such a request. An employer may not retaliate against an employee for making a request to not be scheduled, but is under no obligation to grant the employee’s request to be taken off shifts.
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Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses

Why is OSHA issuing this rule?

This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. One important reason stems from our understanding of human behavior and motivation. Behavioral economics tells us that making injury information publicly available will “nudge” employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

What does the rule require?

The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry.

UPDATED: How will electronic submission work?

OSHA has provided a secure website that offers three options for data submission. First, users are able to manually enter data into a webform. Second, users are able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). The Injury Tracking Application (ITA) is accessible from the ITA launch page, where you are able to provide the Agency your 2017 OSHA Form 300A information. The date by which certain employers are required to submit to OSHA the information from their completed 2017 Form 300A is July 1, 2018.

Anti-retaliation protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.

Compliance schedule

The new reporting requirements will be phased in over two years:

The anti-retaliation provisions become effective August 10, 2016, but OSHA delayed their enforcement until Dec. 1, 2016.

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

Establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

See answers to more frequently asked questions on the rule.

Source: http://www.osha.gov (recordkeeping)

Department of Labor Cites GA Roofing Contractor For Exposing Employees to Fall Hazards, Proposes Penalties

BIRMINGHAM, AL – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has again cited Jose A. Serrato, an independent roofing contractor based in Marietta, Georgia, for exposing employees to fall hazards at a worksite in Birmingham. The employer, who has been cited seven times in the past five years, faces $133,604 in proposed penalties.

OSHA conducted the investigation under the Agency’s Regional Emphasis Program for Falls in Construction, and cited Serrato for exposing employees to fall hazards of approximately 28 feet, and for failing to re-train employees who did not demonstrate the skills necessary to recognize fall hazards.

“Employers are responsible for ensuring their worksites are free of recognized hazards,” said Ramona Morris, OSHA Birmingham Area Office Director. “This employer has continually exposed employees to fall hazards by disregarding federal safety requirements.”

Serrato has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit http://www.osha.gov.

Displaying safety posters signify a commitment to compliance. Our Safe Lifting, Avoiding Slips, Trips, and Falls Poster can be used in conjunction with the required safety training for your employees.

Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA

Under the OSHA Recording and Reporting Occupational Injuries and Illness: Reporting Fatality, Injury and Illness Information to the Government – the following is the requirement for injury and illness reporting.

Scope and application.

Basic requirement.

Within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor.

Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, as a result of a work-related incident, you must report the in-patient hospitalization, amputation, or loss of an eye to OSHA.

You must report the fatality, inpatient hospitalization, amputation, or loss of an eye using one of the following methods:

  • By telephone or in person to the OSHA Area Office that is nearest to the site of the incident.
  • By telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).
  • By electronic submission using the reporting application located on OSHA’s public Web site at osha.gov.

Implementation

If the Area Office is closed, may I report the fatality, in-patient hospitalization, amputation, or loss of an eye by leaving a message on OSHA’s answering machine, faxing the Area Office, or sending an email? No, if the Area Office is closed, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye using either the 800 number or the reporting application located on OSHA’s public Web site at www.osha.gov.

What information do I need to give to OSHA about the in-patient hospitalization, amputation, or loss of an eye? You must give OSHA the following information for each fatality, in-patient hospitalization, amputation, or loss of an eye:

  • The establishment name;
  • The location of the work-related incident;
  • The time of the work-related incident;
  • The type of reportable event (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye);
  • The number of employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;
  • The names of the employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;
  • Your contact person and his or her phone number; and
  • A brief description of the work-related incident.

Do I have to report the fatality, inpatient hospitalization, amputation, or loss of an eye if it resulted from a motor vehicle accident on a public street or highway? If the motor vehicle accident occurred in a construction work zone, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye. If the motor vehicle accident occurred on a public street or highway, but not in a construction work zone, you do not have to report the fatality, inpatient hospitalization, amputation, or loss of an eye to OSHA. However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

Do I have to report the fatality, inpatient hospitalization, amputation, or loss of an eye if it occurred on a commercial or public transportation system? No, you do not have to report the fatality, in-patient hospitalization, amputation, or loss of an eye to OSHA if it occurred on a commercial or public transportation system (e.g., airplane, train, subway, or bus). However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

Do I have to report a work-related fatality or in-patient hospitalization caused by a heart attack? Yes, your local OSHA Area Office director will decide whether to investigate the event, depending on the circumstances of the heart attack.

What if the fatality, in-patient hospitalization, amputation, or loss of an eye does not occur during or right after the work-related incident? You must only report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident. For an in-patient hospitalization, amputation, or loss of an eye, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident. However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

What if I don’t learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye right away? If you do not learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye at the time it takes place, you must make the report to OSHA within the following time period after the fatality, in-patient hospitalization, amputation, or loss of an eye is reported to you or to any of your agent(s): Eight (8) hours for a fatality, and twenty-four (24) hours for an in-patient hospitalization, an amputation, or a loss of an eye.

What if I don’t learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident? If you do not learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident, you must make the report to OSHA within the following time period after you or any of your agent(s) learn that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident: Eight (8) hours for a fatality, and twenty-four (24) hours for an inpatient hospitalization, an amputation, or a loss of an eye.

How does OSHA define “in-patient hospitalization”? OSHA defines inpatient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment.

Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing? No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each inpatient hospitalization that involves care or treatment.

How does OSHA define “amputation”? An amputation is the traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.

Source: www.OSHA.gov. [66 FR 6133, Jan. 19, 2001; 79 FR 56187-56188, September 18, 2014]

 

Oregon Employers To Begin Withholding Statewide Transit Tax July 1, 2018

On July 1, 2018, employers must start withholding its Statewide Transit Tax (one-tenth of 1%) from the wages of Oregon residents (regardless of where the work is performed) and nonresidents who perform services in Oregon.

Oregon has released the following forms for employers regarding its new tax:

Click here for additional forms and resources, including transit tax guides and calendars.

Oregon employers are responsible for withholding the tax from employees’ wages; reporting taxes withheld on a quarterly or annual return; remitting taxes withheld quarterly or annually; and reconciling quarterly or annual reports on the annual reconciliation return. Click here for specific details and deadlines.

New York Paid Family Leave: Updated Information for Employers

The state of New York has updated two provisions of its paid family leave guidance regarding deductions from employees’ wages and voluntary coverage. Highlights of the changes are presented below.

Wage Deductions
The 2018 payroll contribution is 0.126% of an employee’s weekly wage and is capped at an annual maximum of $85.56. If an employee earns less than the New York State average weekly wage ($1,305.92 per week), he or she will have an annual contribution amount less than the cap of $85.56, consistent with his or her actual weekly wages.

Click here for a calculator that provides an estimate of weekly employee deductions.

Voluntary Coverage 
A self-employed individual who has employees must obtain paid family leave coverage for such employees. The self-employed individual must opt in for both disability and paid family leave benefits and cannot opt in for only paid family leave.

Click here for additional information.

Background
New York has enacted a paid family leave policy, which is being phased into effect beginning January 1, 2018. It applies to employers of all sizes. When the law is fully phased-in over the next several years, employees will be eligible for 12 weeksof paid, job-protected leave when certain life events occur.

Click here for more information about the law.

Post an employee notice
A “Notice To Obtain” is included in our All In One Poster for the state of New York, and not the actual notice. Here is what you need to know with regards to obtaining it:

  • Your insurance carrier will provide you with a notice to employees (Form PFL-120) stating that you have Paid Family Leave insurance.
  • If you are self-insured, you can get this notice by contacting the NYS Workers’ Compensation Board at certificates@wcb.ny.gov.
  • Post and maintain this notice in plain view.

Originally posted by HR360

New Fair Chance Law bans Washington employers from asking about criminal history

On Tuesday March 13, 2018, Governor Inslee signed into law a bill that would ban employers from adding that “box” that asks about one’s criminal background history during the initial application process.

Under House Bill 1298, an employer may no do the following:

  • include any question on any job application;
  • inquire either orally or in writing;
  • receive information through a criminal history background check;
  • or otherwise obtain information;

about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position.

Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.

An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state “no felons,” “no criminal background,” or otherwise convey similar messages are prohibited.

An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

Exemptions 
Certain employers are exempt (§ 4) from these prohibitions, including employers who are expressly permitted or required under federal or state law to inquire into or consider information about an applicant’s or employee’s criminal record for employment purposes. This would include jobs in law enforcement, state agencies, schools and other businesses that supervise children, persons with disabilities and vulnerable adults.

The law is expected to take effect on June 6, 2018. Additional provisions are contained in the text of the law.

For the sake of our All In One Posters, it has not been determined at this moment whether a mandatory notice is required to be posted.

Maryland Releases Updated Sick and Safe Leave Poster and Model Policies Under Healthy Working Families Act

Maryland has released an updated poster and model policies regarding its sick and safe leave law, which is currently in effect. The newly updated poster will be included in our Maryland All-In-One posters beginning March 16, 2018. For customers who have already purchased 2018 Maryland posters earlier this year, you may download, print, and post this bilingual notice beside your existing poster.

Updated Poster and Model Policies
An employer must notify its employees that they are entitled to earned sick and safe leave under the law. The state has released an updated poster (in English and Spanish) for employer use. Additionally, model policies for employee handbooks or other employee benefits documents are available.

Note: These documents (as well as the FAQs discussed below) are intended to provide general guidance about the law’s requirements and may be subject to change. The state is expected to release final guidance documents in the future.

Updated FAQs and Additional Resources
The state has also released updated FAQs that address various topics (e.g., applicability, accrual, use, verification) regarding the sick and safe leave law.

Additional resources (including guidance and executive orders) are available by clicking here.

Background
Under the law, an employer with 15 or more employees generally must provide an employee with paid earned sick and safe leave, while an employer with 14 or fewer employees must (at least) provide an employee with unpaid earned sick and safe leave. The law does not apply to an employee who (among other things) regularly works less than 12 hours a week.

Originally posted by HR360

Proposed OSHA Rule for California Indoor Heat Illness Protection due January 1, 2019

On September 29, 2016, Governor Brown signed a bill that directs Cal/OSHA to create a regulation protecting employees of indoor workplaces from heat illness. Section 6720 was added to SB 1167 requiring that a proposed rule be submitted to Cal/OSHA Standards Board by January 1, 2019. The standard would apply to all indoor work areas where the temperature equals or exceeds 80 degrees Fahrenheit when employees are present.

In November 2015, the California Occupational Safety and Health Appeals Board has ruled in favor of Cal/OSHA’s citations against two employers because their Injury and Illness Prevention Programs (IIPP) failed to effectively address the hazard of indoor heat.

“This is the first case of indoor heat considered by the Appeals Board. In this case, the ruling affirms that California’s IIPP standard can be used to address hazards that the standard does not specifically identify, including indoor heat,” said Christine Baker, Director of the Department of Industrial Relations (DIR).

On-the-job heat exposure is a risk during operations involving high air temperatures, radiant heat sources, high humidity, direct physical contact with hot objects, or strenuous physical activities. Affected workplaces may include foundries, brick-firing and ceramic plants, glass products facilities, rubber products plants, electric utilities, commercial kitchens, laundries, chemical plants, and smelters.

OSHA emphasizes that while thousands of workers become sick each year from occupational heat exposure, the illnesses and deaths that can result are preventable.

All in One Poster Company designed the California Heat Illness Prevention for Indoor Work Environments to address this requirement. Our poster contains steps to prevent heat illness, types of heat illnesses and treatments, and steps that both employees and employers can take to address this issue and create a plan of action. Our easy-to-read, laminated poster is designed to supplement the mandatory training that will be required by the Cal/OSHA standard. It can also be used as a quick reference guide in preventing heat stress, heat exhaustion, heat stroke, or even death.

Our California Heat Illness Prevention for Indoor Work Environments Poster is available in both English and Spanish, and measures 24″ x 39″.

All in One Posters - California Heat Illness Prevention for Indoor Working Environments

DOL Replaces Guidance on Employee Classification

The U.S. Department of Labor (DOL) has withdrawn its 2014 guidance regarding the meaning and scope of the term “employment relationship” under the federal Fair Labor Standards Act (FLSA) and replaced it with its guidance from 2008. As a result of this move, the DOL no longer advises that “most workers are employees.”

Withdrawn 2014 Guidance
In 2014, the DOL issued guidance on how to determine whether an employment or independent contractor relationship exists for purposes of the federal FLSA. The guidance stated, among other things, “Applying the FLSA’s definition [of “employ”], workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees.” Effective immediately, this guidance has been withdrawn.

2008 Guidance Once Again Effective
The 2014 guidance has been replaced by guidance from 2008. The 2008 guidance does not contain the guidance that “most workers are employees.” However, this guidance does include the same “economic realities” test present in the 2014 guidance, under which determination of employee status is made by considering the following factors:

  • Whether the work performed is an integral part of the employer’s business.
  • Whether the worker’s managerial skill affects the worker’s opportunities for profit or loss.
  • The worker’s relative investment compared to the employer’s investment.
  • Whether work performed requires special business skills, judgment, and initiative.
  • Whether the worker-employer relationship is permanent or indefinite.
  • The nature and degree of the employer’s control of the work.
Originally posted by HR360