Quick Hits - April 12, 2017 - American Society of Employers - ASE Staff

Quick Hits - April 12, 2017

OSHA investigative power circumscribed:  President Trump has signed H.J. Res. 83, a resolution of disapproval to nullify the Department of Labor's rule, "Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness," according to an April 3 White House press release. The president’s pen stroke does away with OSHA’s controversial "Volks" rule, which amended the safety and health agency’s recordkeeping regulations to clarify that recordkeeping violations are continuing violations and thus, when an employer initially fails to record a recordable illness or injury, the agency can go back six months after the five-year mandated recordkeeping period to find a violation.  OSHA amended the regulation to clearly establish its continuing violation contention after the D.C. Circuit ruled in 2012, in AKM LLC dba Volks Constructors v. Secretary of Labor (Volks II), that the OSH Act does not permit OSHA to impose a continuing recordkeeping obligation on employers. In amending the rule, OSHA made clear that an employer’s recordkeeping duty does not expire (notwithstanding the six-month statute of limitations) just because the employer fails to create the necessary records when first required to do so.  Source: CCH 4/6/17

H-1B investigations to become more intense: U.S. Citizenship and Immigration Services (USCIS) announced on April 3 its intent to crack down on H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, according to the USCIS, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. USCIS says it will take a more "targeted approach" when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. Starting April 3, USCIS will focus on cases where USCIS cannot validate the employer’s basic business information through commercially available data; H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and employers petitioning for H-1B workers who work off-site at another company or organization’s location. USCIS will continue random and unannounced visits nationwide.  Source: USCIS.gov 4/3/17 (ASE is hosting a Cross Border and Immigration Update May 3.  For more information click here)

7th Circuit raises Supreme Court issue whether sexual orientation is covered by Title VII:  In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that Hively’s allegation that she was passed up for full-time teaching positions and not retained in her part-time position because she is a lesbian, stated a viable claim under Title VII. As the opinion noted, this decision breaks the Seventh Circuit’s own precedent and every other federal appeals court that has directly addressed this issue.  Most recently, the 11th Circuit Court of Appeals stated that Title VII did not cover sexual orientation.  With the split in the circuits, the issue is ripe for the Supreme Court to rule definitively on the issue. While the Hively decision only applies to employers within the Seventh Circuit, including those in Indiana, Illinois, and Wisconsin, employers nationwide should be mindful that the EEOC currently takes the position that claims of discrimination based on sexual orientation are covered by Title VII and the EEOC is accepting and investigating sex discrimination charges on that basis regardless of the employer’s location.  Source: Frost Brown Todd LLC 4/5/17

OFCCP runs amok – Google the new target: The Labor Department's Office of Federal Contract Compliance Program (OFCCP) sued Google on January 4, claiming the company did not allow access to job and salary history records as required as part of a compliance review, in violation of federal antidiscrimination laws. Google initially complied with the request, sending data on the more than 21,000 employees it had in 2015. But OFCCP demanded more information for Google’s workforce the year prior, including employee names, dates of birth, addresses, phone numbers and email addresses.  Google said enough is enough.  During a difficult cross-examination, Janette Wipper, OFCCP’s Pacific Region Regional Director, struggled to concisely answer questions about the OFCCP’s audit procedures. In addition, she was asked, “It’s accurate to say you don’t have any personal knowledge of Google’s reviews and practices?” “That’s why we’re doing the review,” Wipper responded. Frank Wagner, director of compensation at Google testified under direct examination that much of the additional data OFCCP requested has no relevance to how compensation is calculated at Google and not used by the compensation team to determine salaries.  Source: The Recorder 4/7/17

Worst employer of 2017?  In Perez v. EL TEQUILA, LLC (10th Cir. 2/7/17), the employer, a Tulsa, Oklahoma, area chain of Mexican restaurants, kept two sets of books — one that showed its employees working a maximum of 40 hours per week, and another that showed the actual amounts of time worked (which often totaled more than 40).  The Department of Labor investigated this employer four separate times for wage-and-hour violations.  Based solely on the bogus set of books, the employer passed the first investigation, but the second and third investigations uncovered the bogus time records at all four of the employer’s restaurants and resulted in a back-pay bill of nearly $650,000.  To make matters worse, the employer further cheated its employees after these investigations by manually overriding employees’ punch-ins and punch-outs.  The employer paid them for only 40 hours per week, even though they were working much longer. That resulted in a fourth investigation, and another $636,000 in back pay for unpaid overtime.  The employer ended up with a judgment against it totaling $2,137,627.44 (which included back pay and liquidated damages).  If you rip off your employees to the tune of $2-plus million in unpaid overtime, resulting from duplicate books and fabricated time records, you just might be the worst employer of 2017 – and it’s only April.  Source:  Workforce.com 3/9/17

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