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Employment of Young Workers

Posted By Bob Dunlevey and Nadia A. Klarr of Taft Law, Friday, May 17, 2019

With summer often comes employment of young workers.  Moreover, the current heightened demand for workers makes the employment of young workers even more attractive.  This article answers many of the common questions about restrictions imposed by state and federal wage-hour laws.  In general, the type of work that a minor may perform is related to the minor’s age, the nature of the work and schooling status.  State and federal laws vary somewhat so pay attention to your state’s regulations. Here is a basic summary:

14 and 15 year olds:

·         Can work up to 3 hours on a school day, Monday through Friday and 18 hours during a school week.

·         Can work up to 8 hours a day on a non-school day, or 40 hours in a non-school week.

·         Cannot work during school hours.

·         Cannot work before 7:00 a.m. or after 7:00 p.m. when school is in session (except from June 1 through Labor Day when evening hours are extended to 9:00 p.m.)

·         Cannot work in any manufacturing, processing, mining, construction, warehouse operations, maintenance or repair of machinery, and many restrictions apply in cooking.

·         Cannot work in any of the 17 Hazardous Occupations listed below, for “16 and 17 year olds.”

·         Cannot load/unload trucks. 

·         Cannot use power driven machinery, mowers or cutters.

·         Under federal law the prohibited occupations for minors under 16 is broader than it appears and includes such things as outside window washing from ladders, work in boiler/engine rooms and work in connection with vehicles using lifting apparatus or tire inflation of removable rims, mowers and cutters.

16 and 17 year olds:

·         While federal laws do not restrict the number of hours or times of day that workers 16 years of age and older may be employed, many states do so and these state restrictions primarily address work during the school day.

·         Can work in any occupation except those declared hazardous by the Secretary of Labor. The 17 Hazardous Occupations for non-farm work deal with the following:

o    Manufacturing or storing explosives

o    Driving a motor vehicle as primary job or being a vehicle outside helper -- but 17 year olds can perform incidental/occasional daytime driving for vehicles not exceeding 6,000 pounds within a 30 mile radius of the place of employment

o    Coal mining

o    Logging and sawmilling

o    Power driven wood working machines

o    Exposure to radioactive substances and to ionizing radiations

o    Power driven hoisting apparatus, including forklifts, bobcats and skid-steers

o    Power driven metal forming, punching and shearing machines

o    Mining other than coal mining

o    Meat packing or processing (including power driven meat slicing machines)

o    Power driven bakery machines

o    Power driven paper products machines (including balers and compactors)

o    Manufacturing brick, tile, and related products

o    Power driven circular saws, band saws, wood chippers, guillotine shears, chain saws, and abrasive cutting discs

o    Wrecking and demolition

o    Roofing operations

o    Excavating operations

·         Door-to-door sales/solicitation is permitted at age 16 under certain restrictions and swimming pool lifeguarding is permitted at age 15.

18 year olds:

·         Can work in any job for unlimited hours

Parental employment:  A parent’s employment of his own child under the age of 16 is permissible in any occupation other than manufacturing, mining or in any of the 17 Hazardous Occupations listed above.

Apprentice/Student Learners:  Occupations hazardous for children between ages 16-18 do not apply to apprentices or student learners but restrictions on this include the child must be enrolled in a formal apprenticeship program or state cooperative vocational training program.  Other restrictions apply.

State laws:  State laws related to employment of minors vary from federal requirements and frequently are more restrictive.  Employers should review the requirements of the states in which they do business.  For example, Ohio requires a written wage agreement specifying the rate of pay for the youth.

Other laws:  Employment laws such as workers’ compensation, safety, minimum wage/overtime and discrimination are equally applicable to young workers.

Minimum wage:

                $7.25 federal minimum wage unless $4.25 “youth sub-minimum wage” used for first 90 days.

                $8.55 Ohio minimum wage as of January 1, 2019.

Rest period:  Under Ohio law and some other states’ laws, employees under eighteen must receive a 30 minute uninterrupted rest period (unpaid) after the first five hours of work.

Penalties:  Employers who violate the Fair Labor Standards Act child labor law provisions are subject to a civil money penalty of up to $12,845 for each child labor violation and $58,383 for a violation which causes the death or serious injury of a minor.  Imprisonment can occur for repeated infractions.

Record keeping:  A list of minors employed and a written record of the hours worked and rest breaks taken must be maintained for two (2) years.  Ohio requires a written agreement related to the compensation to be received and the display of a poster is also required.

Developments:  In the recent past, the Labor Department has considered unwinding decades-old child labor restrictions by allowing teenagers to perform some work traditionally considered hazardous – a method to provide youths with more workplace opportunities.  Watch for developments.

This summary cannot provide all of the requirements for employing minors.  For further information about this and other matters, use your Legal Services Plan and contact Bob Dunlevey, Board Certified Labor & Employment Law Attorney at Taft/Law - rdunlevey@taftlaw.com (937) 641-1743 or Nadia A. Klarr at nklarr@taftlaw.com (937) 641-2055. Be sure to identify yourself as a DRMA member.

 

Tags:  employment law  lawyer  legal advice  legal services 

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Affordable Care Act Under Attack - Yet Again!

Posted By Bob Dunlevey of Taft Law, Tuesday, April 16, 2019

The Trump Administration has just gone on the record stating that the entire Affordable Care Act should be struck down in a pending Court case destined for appeal – Texas v. United States.  On Dec 14, 2018, a Federal District Judge ruled that because Congress eliminated the penalty on individuals not having ACA compliant healthcare coverage (the “individual mandate”), the ACA “can no longer be sustained as a constitutional exercise of Congress’ tax powers.”   In 2012, the Supreme Court ruled that the individual mandate was constitutional because of Congress’ power to tax.  But, when the fine for not having insurance was eliminated, there was no taxing basis to uphold the law.

The Department of Justice has just formally announced that it supports the position of the District Judge finding the entire ACA unconstitutional because if part of the ACA fails then the rest of it should be ruled invalid as well. 

The case is destined for the Federal Fifth Circuit Court of Appeals in New Orleans and may see as a final destination the U.S. Supreme Court.  These proceedings may take more time than is left in President Trump’s current term.  In the meantime, ObamaCare remains in effect and both individuals and employers need to comply.  Employers still have to offer healthcare coverage to at least 95% of full-time employees and properly report offers of coverage as elements of compliance.  For the 10 million individuals with expanded ACA Medicaid and the 11 plus million utilizing the ACA exchanges, coverage will go on for now.

Those most familiar with the legal arguments advanced in Court by the coalition of 20 States believe that the decision will be struck down by the Court of Appeals even though it is a very conservative court.  If this be true, the Trump Administration’s appeal to the U.S. Supreme Court may not be accepted.  But, if the Court of Appeals somehow upholds the Trial Judge’s position that the ACA is unconstitutional, the case will surely be heard by the Supreme Court.

Because healthcare is such a volatile issue and Congress is so divided on the topic, it is doubtful that a legislative solution will be found before the 2020 elections.  Watch for more developments in the months to come, but don’t count on the ACA being cast aside for now.

For further information about this and other matters, use your Legal Services Plan and contact Bob Dunlevey, Board Certified Labor & Employment Law Attorney at Taft/Law - rdunlevey@taftlaw.com (937) 641-1743. Be sure to identify yourself as a DRMA member.

Tags:  affordable care act  legal advice  legal services  safety 

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Heat Stress Fatality Citations Overturned by OSHA Commission

Posted By Bob Dunlevey of Taft Law, Wednesday, March 20, 2019

In one of the most significant decisions in decades, rendered by OSHA's highest tribunal, a commercial roofing contractor was found not to have violated the General Duty Clause and training standards for its temporary employee who died following his collapse on a roof.  The decision has far reaching implications for employers dealing with citations related to the General Duty Clause (GDC) - the “catch-all” provision that requires employers to provide a workplace free from known hazards that can be feasibly abated. In the 52-page decision overturning the trial Judge’s decision, there is something to assist every employer in successfully defending against OSHA citations – a must read decision for all safety professionals. It not only serves as important guidance on what employers should do to address heat stress and train employees but also it limits OSHA's recent attempts to foist ad hoc requirements on employers through GDC citations when no applicable standard exists. The case is A.H. Sturgill Roofing, Inc. v. Sec'y of Labor, OSHRC, No. 13-0224, 2/28/19. Sturgill was represented throughout the case by Bob Dunlevey of Taft/Law.

Through this high profile case which started in 2013 and just ended in Washington, OSHA was in hopes of forcing each employer to have a very elaborate and burdensome heat stress program – a multi-faceted program almost impossible to carry out. It chose this case in an attempt to emphasize heat stress issues and broaden its expectations as to what an employer's heat stress program should be.    See Bob Dunlevey's Legally Speaking article – “OSHA - HOT OVER HEAT STRESS” for a detailed analysis of heat stress programs and his comments about this case as trial attorney for the employer.

 

Some of the “take-aways” from this precedent setting decision are:

·         Risks inherent in the workplace are part of normal operations and by themselves should not imply automatically that they carry a significant risk of harm supporting a violation of the GDC - Congress never intended such.

·         Excessive heat is not in and of itself a recognized hazard.

·         Rest, water and shade remain the primary methods to address heat hazards.

·         Numerous feasible and effective abatement measures exist and all do not have to be used together.

·         OSHA's use of the National Weather Service heat index chart or the use of trade association training literature to prove a hazard is quite problematic and provides numerous defenses for employers.

·         The underlying health conditions of a single employee cannot set the employer's safety responsibilities toward that employee due to the prohibited inquiries regulated by the American with Disabilities Act - personal risk factors such as disability and age should not be factored into an OSHA violation.

For further information about this and other OSHA matters, use your Legal Services Plan and contact Bob Dunlevey, Board Certified Labor & Employment Law Attorney at Taft/Law - rdunlevey@taftlaw.com (937) 641-1743. Be sure to identify yourself as a DRMA member.

Tags:  legal advice  legal services  OSHA  safety 

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Employment Law Predictions 2019 and Beyond

Posted By Bob Dunlevey of Taft Law, Friday, February 15, 2019

Already 2019 is proving to be one of the most unique periods in our country’s history when it comes to developments in Washington and the various Statehouses.  It’s a “wacky” time!  While, today, it is somewhat difficult to predict developments through the next Presidential election, every employer needs to take stock of what is going on in order to more effectively plan and to make their voices heard by elected officials.

In the last two years, employers have enjoyed more business friendly attitudes and actions by legislators and agencies.  Deregulation has given employers opportunities to focus on their businesses instead of dealing with the regulation “de jour” previously promulgated by a myriad of agencies.  For example, the NLRB in the recent past has undone many of its prior opinions having to do with handbook work rules which President Obama’s appointees to the Board found to be in violation of the National Labor Relations Act.

Rulemaking now seems to be the order of the day for various agencies even though they have sparingly used this authority in the past.  Instead of agencies waiting for lawmakers to change employment laws, agencies such as the Department of Labor and the National Labor Relations Board are making their own declarations.  But, advocacy groups abound and they are trying to thwart these actions.  Already, the Democrat dominated House of Representatives has pledged numerous hearings to question these agencies’ rulemaking authority and the actual rules being promulgated.  Representative Bobby Scott, D-Va. is heading the House Committee on Education and the Workforce and is a strong advocate for progressive workplace friendly legislation.  Anticipate numerous hearings designed to thwart agencies from undoing what President Obama’s appointees did to impact the employment law setting between 2009 and 2017.

The impact of the 2020 Presidential election is already being felt.  It is a traditional tactic by Presidential candidates to tout workplace issues.  Of the dozen plus Democratic candidates now throwing their hats in the ring, each has spoken strongly about worker friendly regulations such as a $15 minimum wage, paid family leave, enhanced union security, and equal pay – to name just a few.  But, the 116th Congress may very well experience “Washington-gridlock.”  It takes 60 votes in the Senate to pass legislation and this certainly spells impasse for many worker friendly proposals. But, as these topics are discussed on the national podium and progressive policies are advanced, the movement will trickle down to the respective states.  Anticipate much more legislation on worker friendly topics being placed on the states’ ballots in 2019 and beyond.  The last midterm election saw progressives take control of Statehouses in Colorado, Illinois, Maine, Nevada, New Mexico and New York, among others.  94 union members were elected to State Senates, 467 union members were elected to Statehouses and over 100 American Federation of Teacher members won offices as well. Their voices will be heard and where Washington gets stalled, the Statehouses will fall victim to legislative interest groups.

 

Here are some of the worker friendly issues you need to watch and prepare for:

·         $15 minimum wage – many interest groups as well as the Democrat leadership are strongly advocating increasing the federal minimum wage from $7.25 to $15 per hour.  While President Trump and Senate Republicans likely will not support it, Democrats see the issue as a strong message ahead of the 2020 election.  Already, Amazon and Target have publicized the installation of a $15 minimum wage and many Statehouses are moving toward this $15 threshold.  As we start 2019, 29 states already have a higher minimum wage.

·         Overtime exemption – anticipate changes in the salary level for employees to be exempt from overtime.  Recall the prior flurry of debate and federal court litigation in Texas which shot down the Department of Labor’s proposal to require an employee to earn $47,476 per year in order to enjoy the overtime exemption.  Anticipate that the threshold will move from the existing $23,660 to approximately $33,000 per year.  Plan now for this outcome which will be discussed heavily this Spring.

·         Pay Equity – even though the federal Equal Pay Act has been in existence since 1963, discussions of equal pay for not only equal work but “similar” work has much traction. Coupled with the EEOC’s initiative to have salary history questions excluded from the applicant process and proposed EEO reports verifying the actual wages of employees, you certainly will hear much debate.  But, anticipate nothing much happening at the federal level because of the laws which are already in effect.  Watch the pending cases holding that employers cannot use an applicant’s past salary as a defense for setting compensation under the Equal Pay Act. The U.S. Supreme Court will probably weigh in with or without Ruth Bader Ginsburg who may leave the Bench before the next inauguration.

·         Paid Leave – progressives wish to take the 1993 Family and Medical Leave Act to the next step providing paid leave.  The proposal sounds quite appealing to the average worker. Now 11 states and 30 local jurisdictions have some type of paid leave.  13% of employees now enjoy such.  But, the devil is in the detail when it comes to the proposed Family and Medical Insurance Leave Act.  This proposal includes a national wage insurance program paying a cash benefit – further government control and expanded federal involvement.  It broadens entitlement for things such as school conferences, lapses in childcare, minor illnesses and preventive care.  President Trump appears to be in favor of some form of paid family leave and other Republicans certainly will tout similar proposals as we move toward election 2020.  Anticipate many more states passing some form of legislation.  For companies in multiple jurisdictions, you will have to watch these state developments closely. 

·         Multi-Employer Pension Plans – the unspoken current crisis equal to the 2008 financial collapse comes in the form of the 10 million workers in the 1,400 multi-employer defined benefit pension plans – financially sick plans – $48.9 billion underfunded in the private sector and $4 trillion unfunded in the public sector. Benefits have been promised but participants will have to find other ways to live in retirement as these plans go “belly-up” and the federal insurance group known as the Pension Benefit Guaranty Corporation goes bankrupt.  The Congressional Committee empowered to study and make recommendations to address this national crisis missed its November 30, 2018 deadline to make any recommendations.  Watch for various progressive proposals for healthier pension plans and for employers participating in these multi-employer plans to pick up the tab for these unfunded vested liabilities – a tab that no one can afford. Watch for some of the 121 plans in jeopardy to fail in the next few years. 

·         Immigration – Immigration is discussed as a national border issue as well as in the employment setting.  While E-Verify, a well-established federal system to verify whether an employee is properly able to work within our country, is currently utilized for federal government contractors, the idea of mandating all employers to utilize E-Verify has not gotten traction in Washington.  Anticipate much discussion about the employment of undocumented workers but don’t expect any significant change for employers.

·         Right-to-Work – 27 states currently are right-to-work states which means that unions are not allowed to enter into agreements with management to compel union membership or dues. More states will soon become right-to-work.  Recently, the Supreme Court in the Janus decision ruled that mandatory fair share fees for public sector employees were prohibited.  The bigger story is that unions have been a strong voice for workers and for the progressive movement.  They collect $4.5 billion annually in dues to engage in PAC activity.  With the right-to-work legislation taking away the union’s collection of PAC money, the future campaigns aligned with their philosophies may not be as powerful.

So this is where we have been, are, and may be going.  Make sure to pay attention to these developments and plan accordingly.

For further information, use your Legal Services Plan and contact Bob Dunlevey at Taft Law (937) 641-1743 or email rdunlevey@taftlaw.com

Tags:  economy  legal advice  legal services  workforce 

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Are You Ready for 2019?

Posted By Bob Dunlevey of Taft Law, Wednesday, January 23, 2019

With the New Year comes a time of re-examination, resolve and resolutions for most businesses.  One of the best ways to get a good start on legal issues is to perform a self-audit to make sure your legal affairs are in order.  This will assist in keeping your company from being entangled in costly, time consuming legal matters throughout 2019.  You know the old “ounce of prevention” saying – it certainly is true when it comes to legal matters.  Use the following checklist:

 

Corporate Affairs

·         Has the annual corporate meeting been conducted and minutes prepared?

·         Is the minute book up to date as to designated officers, directors, shareholders and key events including yearend bonuses?  Are the documents signed?

·         Does your minute book reflect new banking and financial arrangements?

·         Are your benefit plans, profit sharing/retirement plans in full compliance with the law and do you have a plan for benefit cost containment such as a medical reimbursement plan?  Have you changed your mileage allowance?

·         Does your buy-sell agreement contain updated valuation information?

·         Have you consulted your CPA regarding recent tax changes?

 

Employment Practices

·         Are your personnel records complete and up-to-date? I-9s all in order?

·         Have you applied your records retention policy to discard unneeded personnel records?

·         Are you federal/state bulletin board postings current?  What about the new minimum wage?

·         Have attendance records been reviewed so you can identify the abusers and place them on an action plan?

·         Are your employment forms accurate and in compliance with the law?

·         Is there anyone on a leave of absence needing review for return or termination?

·         Is your employee handbook current as to names of individuals listed and procedures to be followed?

·         Do you have updated FMLA, harassment, alternate duty and substance abuse policies?

·         Are your wage rates competitive -- do you have unequal pay rates for employees doing comparable duties?

 

Workers’ Comp

·         Do you have a cost containment plan to control premiums?

·         Have you analyzed your major claims to see if they can be eliminated through negotiated settlements?

·         Is your claims handling procedure effective and well known by your administrative staff?       

·         Have you spoken with your third party administrator about how you will coordinate your efforts to better manage claims in 2019?

 

OSHA

·         Are your training requirements met?

·         Are your logs and documentation in order?

·         Is your safety plan up-to-date?

·         Have you audited your operations to see which OSHA standards are applicable to your facility and whether you are in compliance? – i.e., training and evaluation components of such standards as material handling equipment and personal protective equipment.

·         Have you introduced new chemicals into the workplace requiring amendment to your HazCom program?

 

The list could go on forever.  But, the point to be made is -- do a self-audit now and save a headache or two in 2019.  For more information, use your Legal Services Plan and contact Bob Dunlevey at Taft Law – (937) 641-1743 or email rdunlevey@taftlaw.com

Tags:  employment law  law  lawyer  legal services  manufacturing 

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