Quick Hits - October 4, 2023 - American Society of Employers - ASE Staff

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Quick Hits - October 4, 2023

Is a highway shooting a recordable event for OSHA? In a recently published interpretation letter, a law firm asked OSHA whether a shooting injury sustained by its client's driver was work-related, and specifically if "a continuous string of unforeseeable third-party criminal acts that injured, killed, and/or affected the general public over the course of several hours [would] be sufficient to rebut the geographic presumption of work-relatedness?" OSHA responded that the employee's injury was work-related and therefore recordable, despite an absence of evidence that the driver provoked the motorist in any way. OSHA focused on the fact that the employee was present on the highway "as a condition of their employment" and was traveling "in the interest of the employer" as required by 29 CFR 1904.5(b), because the employee was driving a company vehicle and was traveling between service calls when the accident and shooting occurred. Consequently, OSHA concluded that the employee was in the work environment at the time of the injury.  Following this logic, any injury would fall under workers’ compensation.  Source: Littler 9/20/23

Implications of the Wage and Hour and EEOC memorandum of understanding (MOU):  On September 14, 2023, the EEOC and WHD announced that they had entered into a Memorandum of Understanding enabling information sharing, joint investigations, training, and outreach. The MOU now empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations. The MOU specifically contemplates that the EEOC may share employer EEO-1 reports with WHD. Notably, Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements.  Whether these provisions of the MOU might be sufficient to ward off a FOIA request directed to WHD may, at some point, be tested in the courts. WHD’s sibling agency at the Department of Labor, OFCCP, has been involved in contested FOIA litigation seeking large volumes of EEO-1 reports in OFCCP’s possession.  Further, the coordinating of data could lead to bigger and more expensive-to-defend lawsuits including Equal Pay charges as a majority of the offenders hire vulnerable and low paid workers – right in the bailiwick of the EEOC’s Strategic Plans.  Source:  Seyfarth Shaw 9/19/23

Childcare subsidies have run out; will women quit the workforce because of a lack of flexibility? President Biden's American Rescue Plan Act provided $24 billion in funding to childcare centers in 2021, helping an estimated 80% of centers pay their workers and keep their doors open through the pandemic. However, that money is set to run out on September 30, potentially forcing over three million children to leave their care programs and costing families $9 billion in lost earnings, according to the national think tank Century Foundation.  Once the funding is gone, the childcare industry will be in crisis, underlines Nina Perez, national director for early learning at MomsRising, a social welfare organization and advocacy group dedicated to families. The Century Foundation found that more than 70,000 childcare programs will likely close, and the industry is estimated to lose 232,000 jobs. This means fewer slots for kids, higher childcare costs, and fewer parents (especially mothers) in the workforce. "Without continued investment, the [U.S.] is headed towards a giant cliff," according to Perez.  Source:  EBN 9/21/23

If slowdowns occur because of the strike, time to train:  When businesses invest in coaching programs for employees, the average return on investment (ROI) is $7 for every $1 spent on leadership development, according to a Sept. 21 report from BetterManager, a leadership development platform, and research firm The Fossicker Group.   The ROI appears to stem from increased revenue and sales as a result of leadership development participation, as well as cost savings through higher employee retention and lower recruiting costs. In a survey of 752 people responsible for leadership development at a range of companies in the U.S., Canada, and the U.K., 84% said their company still prioritizes investment in leadership development despite tough market conditions. In addition, 99% said they’d maintain or increase spending on leadership development during the next 12 months.  Leadership development investment varies by industry, according to the report, including the amount and who receives training and coaching. For instance, the amount ranged from a low of $25 per person in government agencies to a high of $2,667 per person at law firms. Also at the higher end, holding companies spent $1,667 per person, and manufacturing companies spent $1,000 per person.  Source:  HR Dive 9/26/23

New federal contractor minimum wage for 2024: The U.S. Department of Labor issued updated minimum wages Wednesday for federal contractors for 2024.  The DOL said in two notices that are published in the Federal Register that contracts entered with the federal government on or after January 30, 2022, will have a new minimum wage of $17.20 per hour. A $12.90 hourly minimum wage will apply to those contracts created on or after Jan. 1, 2015, but before January 30, 2022.  Those minimum wages will start rolling on Jan. 1, according to the notices.  The $17.20 per hour minimum wage pertains to Biden's Executive Order 14026, which will also completely phase out the cash wage for tipped employees starting January 1.  Source:  Law360 9/27/23

Texas Federal District Court strikes down federal contractor minimum wage:  The Biden executive order initially raised the minimum wage for contractors to $15 an hour starting in 2022 and was challenged in Texas federal court.  The Texas court ruled Tuesday that Biden didn't have the authority under the Federal Property and Administrative Services Act, also known as the Procurement Act, when he issued the executive order in April 2021. In November 2021, the DOL finalized the rule implementing the executive order, which took effect January, 30, 2022.  While the court ruled that Texas, Louisiana, and Mississippi, the states that challenged the wage hike in 2022, don't have to comply with the executive order, the court also refused to extend the ruling nationwide. The Tenth Circuit also partially blocked the enforcement of Biden's executive order in February, but only with respect to firms that lead trips or rent outdoor equipment until it issues its opinion after hearing oral arguments last year.   Source:  Law360 9/7/23


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