On July 13, 2020, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in the Coronavirus Era 2020, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies’ whistleblower program’s current progress, challenges, and priorities. READ MORE
As much of the US re-opens, governmental agencies are issuing updated guidance to guide the return to the workplace. Here’s the latest from OSHA and the EEOC. READ MORE
On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance on employers’ recording obligations. The guidance clarifies when employers must record cases of COVID-19 as an occupational respiratory illness on the OSHA log. Effective Tuesday May 26, 2020, this new guidance supersedes the previous guidance from April 10, 2020. READ MORE
As COVID-19 has forced more Americans than ever to stay home, the package delivery workforce has been active in delivering food and other essential items to people’s doorsteps. These package delivery drivers may have increased levels of risk of exposure to COVID-19 because the tasks they perform can bring them into close contact with the general public. READ MORE
Although COVID-19 continues to disrupt the daily lives of American workers, employers are beginning to plan for a possible return to work. This includes retailers, which have been particularly impacted by the Coronavirus pandemic with a widespread shutdown of stores. Now, OSHA has released specific guidelines for keeping retail workers safe. READ MORE
Employers’ obligation to provide safe workplaces for employees is hardly new. The current COVID-19 pandemic, however, has forced health and safety at work to be top-of-mind across U.S. industries in ways not previously contemplated. Over the past several weeks, the Occupational Safety and Health Administration (OSHA) has issued important guidance regarding COVID-19, focusing specifically on what employers can and should do to ensure their workplaces are safe. Not only is compliance with OSHA’s guidelines important from the standpoint of ensuring worker safety, but failing to do so also can lead to legal risk and liability, as evidenced by a recent OSHA investigation involving Amazon, litigation filed this week, and an April 8 OSHA press release explaining how workers can file OSHA whistleblower claims. READ MORE
Earlier this month, the country was again rocked by mass shootings—two in less than 24 hours left the cities of Dayton, Ohio and El Paso, Texas reeling. Like so many tragedies before, both shootings occurred at a location that was also a workplace. Although neither was perpetrated by an employee (unlike yet another shooting earlier this summer), employees were affected. They had to think quickly and act fast in the moment, and to deal with the psychological and emotional toll afterwards.
The Department of Labor estimates that approximately two million people will be victims of workplace violence this year. With an employed population of approximately 157 million, this means that about 1 in 80 employees will experience workplace violence—and more will likely be aware of or witness it.
In these circumstances, employers should consider developing or updating their workplace violence prevention (1) strategies, (2) policies, and (3) practices. READ MORE
In May 2016, the Occupational Health and Safety Administration (“OSHA”) announced its final rule to “improve tracking of workplace injuries and illnesses.” Effective December 1, 2016, the rule targets retaliation against employees for reporting workplace accidents, including disciplinary actions that are likely to impair or discourage future reporting efforts. In its recent guidance, the agency suggests that blanket, mandatory post-accident drug testing can itself be a form of unlawful discipline where the employer lacks what OSHA terms a “reasonable basis” for suspecting drug or alcohol impairment. The “reasonable basis” language, which has so far received no further clarification, introduces ample uncertainty as to what conduct may be subject to an agency citation and how citations for drug testing fit within the agency’s existing penalty framework. READ MORE
OSHA’s San Francisco region, which includes California, Nevada, and Arizona, launched a new pilot program on August 1, 2016 that would allow complainants, under certain circumstances, to ask OSHA to cease its investigation and issue findings for an ALJ to consider. The program is an effort to process cases more quickly in the region. To qualify for expedited treatment, the investigator must first interview the complainant, allow the respondent the opportunity to submit its position statement and meet with OSHA and present statements from witnesses if so desired, and allow the complainant an opportunity to respond to the respondent’s submission.
Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner’s televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.