Federal Employment Law Update – March 2017

Federal

Congress Eliminates OSHA Continuous Reporting Obligation

On March 22, 2017, the Senate narrowly adopted House Joint Resolution 83 (H.J.Res.83) under the Congressional Review Act. The joint resolution nullifies a recent Occupational Safety and Health Administration (OSHA) final rule that went into effect on January 18, 2017. The rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness” (Continuing Obligation Rule), created a continuing obligation for employers to make and maintain an accurate record of workplace injuries and illnesses, and opened them up to OSHA citations beyond the six-month statute of limitations established under § 658(c) of the Occupational Safety and Health Act (OSH Act).

OSHA developed the Continuing Obligation Rule due to an unfavorable 2012 federal court decision holding that OSHA’s ability to issue citations is limited to the six-month period following the occurrence of a violation as set forth in the OSH Act (AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012)). On March 1, the U.S. House of Representatives adopted H.J.Res.83 to preclude OSHA’s ability to enforce its Continuing Obligation Rule, resolving that it should have no force or effect. The Senate’s approval on March 22 means that the resolution will now go to President Trump for signature. President Trump has indicated that he will sign the resolution.

Read H.J. Res. 83

DOL and DHS Adjust Penalties for H-2B Temporary Nonimmigrant Worker Violations

On March 17, 2017, the Departments of Labor (DOL) and Home Security (DHS) issued a final rule to adjust for inflation the civil monetary penalties assessed or enforced in connection with the employment of temporary nonimmigrant workers under the H-2B program, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

Section 214(c)(14) of the Immigration and Nationality Act provides for imposition of civil money penalties for a substantial failure to meet the terms and conditions of employing an H-2B nonimmigrant worker, or for a willful misrepresentation of a material fact in a petition for an H-2B nonimmigrant worker. The penalty is found at 29 C.F.R. § 503.23. Applicable violations include those related to wages, impermissible deductions, prohibited fees and expenses, and improper refusal to employ or hire U.S. workers, among others. Under § 503.23(b), (c), and (d), the maximum civil money penalty is increased by the final rule from $11,940 to $12,135 per violation.

The increased penalty levels apply to any penalties assessed after March 17, 2017.

Read the Final Rule