Wyatt Employment Law Report


Changes to OSHA Electronic Submission Requirement Take Effect February 25

By Julie Laemmle Watts

ballpen-contemporary-desk-955390.jpgThe Occupational Safety and Health Administration (“OSHA”) published a final rule on January 25, 2019, which goes into effect February 25, 2019.  The final rule better protects worker privacy by eliminating the electronic submission requirement of certain forms.  Specifically, employers with 250 or more employees will no longer have to electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report).  However, employers with 250 or more employees, as well as employers in certain designated industries with 20 or more employees but fewer than 250 employees, will still be required to electronically submit  information from Form 300A (Summary of Work-Related Injuries and Illnesses) on an annual basis.  The final rule also requires covered employers to submit Employer Identification Numbers (“EIN”) when electronically filing injury and illness data, which OSHA hopes will reduce duplicative employer reporting.  Notably, employers do not have to submit EINs until 2020.

The final rule does not change the fact that all covered employers must still maintain OSHA Forms 300 and 301 onsite for OSHA inspections and enforcement of actions.

Important dates:

Final rule goes into effect February 25, 2019

Submission of Form 300A data for 2018 is due by March 2, 2019

Submission of EIN is due by March 2, 2020 (to coincide with employers’ submission of 2019 300A data)

Please notify us if you would like to discuss the above with a member of the labor and employment team at Wyatt, Tarrant & Combs, LLP.


NLRB Returns to Traditional Common-Law Test For Independent Contractors

By Michelle D. Wyrick

On January 25, 2019, in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, Case 16–RC–010963, the National Labor Relations Board (“NLRB”) overruled its prior decision in FedEx Home Delivery, 361 NLRB 610 (2014), and returned to the common-law test that it previously used to determine whether workers were employees or independent contractors.  The NLRB’s decision clarifies the role that “entrepreneurial opportunity” plays in deciding whether workers are employees or independent contractors.  The significance is that employees can unionize under the National Labor Relations Act (“NLRA”).  Independent contractors cannot.

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The NLRB criticized the FedEx decision because it “significantly limited the importance of entrepreneurial opportunity.”  In SuperShuttle, the NLRB considered whether franchisees who operated shared-ride vans for SuperShuttle Dallas-Fort Worth were employees covered under the NLRA or independent contractors.  The franchisees were required to purchase or lease their own vans (that met franchise specifications), and they paid SuperShuttle Dallas-Fort Worth a franchise fee and a flat weekly fee for the right to use the SuperShuttle brand and its reservation apparatus.  Franchisees paid for their own gas and van maintenance.  The franchisees were not Continue reading


US Supreme Court Gives Rare Victory for Arbitration Opponents in a Narrow Case for Transportation Workers

By Sharon Gold

Over the past few decades, the US Supreme Court has become a very arbitration-friendly Court.  Indeed, in the last decade, the Court has upheld arbitration in numerous decisions.  This week, in a rare victory for arbitration opponents, the Supreme Court in New Prime Inc. v. Oliveira unanimously rejected arbitration for truck drivers who were classified as independent contractors under the narrow transportation exception.  At issue was an exception to the enforceability of arbitration clauses for “contracts of employment” of workers engaged as seamen, railroad workers or those engaged in foreign or interstate commerce under the Federal Arbitration Act.  Both parties in the case agreed that truck driver employees fell within the exception.  The questions at issue were: 1) Should the Court decide the initial issue of enforceability of arbitration or should an arbitrator; and 2) Whether the transportation exclusion applied to independent contractors rather than just employees.

The Court initially held that the decision of whether the exclusion applied was one for the Court to decide because it dealt with the statutory authority of the Court.  In another case decided by the Court this term, the Court held that the interpretation of an arbitration agreement, on the other hand, would be subject to review by an arbitrator who would then decide whether arbitration was proper.  Here, because the exclusion concerned the Court’s statutory authority to Continue reading


Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is Continue reading


The Supreme Court of Kentucky Upholds Employees’ Right-to-Work

By Marianna Michael

The Supreme Court of Kentucky has rejected a challenge to Kentucky’s right-to-work law, which prohibits companies from requiring workers to pay union dues as a condition for holding a job.

The relevant provision, codified in KRS 336.130, states:

Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to:

2. Pay any dues, fees, assessments, or other similar charges of any kind or amount to a labor organization.

Kentucky’s AFL-CIO and Teamsters 84 challenged the law. They argued that, pursuant to the Fifth Amendment, the law amounted to an unconstitutional taking from labor organizations that had previously required every worker in a union shop to pay dues, regardless of whether they joined the union. Additionally, they argued that the law was unconstitutional because the Kentucky Constitution prevents lawmakers from passing “special legislation” or laws targeting a specific group or class.

However, both the lower court and the Supreme Court of Kentucky disagreed. The lower court dismissed the case, reasoning that there would be no constitutional taking, since the law was not retroactive and contracts that are currently in existence will remain effective until the contracts expire. Additionally, the court’s opinion distinguished the legislature’s right to create laws and the court’s role in protecting the General Assembly’s ability to legislate. The Supreme Court of Kentucky affirmed the lower court’s ruling.


With New NLRB Proposed Rule, Browning-Ferris’s Days May Be Numbered

By Thomas E. Travis

The National Labor Relations Board (“NLRB”) recently proposed a new rule to scale back a controversial Board decision from 2015 regarding the appropriate test for whether a franchisor and franchisees are “joint employers” under the National Labor Relations Act. This would directly roll back the NLRB decision in Browning-Ferris Industries of California, where the Board extended joint employment to circumstances where a company has only “indirect” control over another company’s workers, overturning a prior ruling that required “direct and immediate control.”

The new proposed rule would establish that two entities become joint employers “only if the two employers share or codetermine the employee’s essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” This is, of course, much closer to the original “direct and immediate control” standard, with even more ascertainable guidelines to assist the Board in reaching its determination. And contra Browning-Ferris, this standard is much more difficult for challengers to meet in making claims for joint employment.

Should the proposed rule take effect, commenters are somewhat divided over the impact of Browning-Ferris on litigation. Some observers note that the standard was infrequently invoked and seemed to not impact labor litigation nearly as much as its detractors contend. On the other hand, some critics rebut that the impact is felt not just in litigation, but in business planning and economic development: the broad standard invoked in Browning-Ferris required entities to closely evaluate every workplace scenario in attempt to avoid the vague strictures of the NLRB’s decision, and the prior rule seems to disincentivize franchising and other cost-saving business relationships.

Employers will most likely welcome the proposed change. If anything, the proposed change removes the latent ambiguities from Browning-Ferris, and replaces it with a clear standard to ease future business planning going forward.


Kentucky Supreme Court Limits Employers’ Ability to Enter Arbitration Agreements with Employees

By Marianna Michael

agreement-coffee-content-1076815Within the first week of October, the Kentucky Supreme Court issued its opinion in Northern Kentucky Area Development District v. Snyder NO. 2015-CA-001167 (Ky. Aug. 27, 2018). The court faced the decision of whether the Federal Arbitration Act (“FAA”) preempted KRS 336.700. Ultimately, the court held that: (1) employers may not condition employment on entering into arbitration agreements and (2) the FAA does not preempt KRS 366.700(2).

In this case, Danielle Snyder brought suit against her former employer, the Northern Kentucky Area Development District (“NKADD”). NKADD is a public agency that provides social programs to eight Kentucky counties. It hired Snyder on the condition that she enter into an arbitration agreement. The agreement required Snyder to resolve all disputes with NKADD through arbitration and not through the courts. Snyder was given the option to reject the agreement within five days of accepting it, but the rejection would end her employment with the company. She accepted the condition and worked for NKADD until Continue reading