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Join us for our 2019 Employment Law Series where HSB’s Employment Law team will present a complimentary one-hour breakfast session each month on key employment law topics. Each seminar will provide a detailed update on the important issues and trends impacting South Carolina’s employers. Presentations will be live-streamed to our offices in Charleston, Columbia, Florence and Greenville each month so you can attend in the city of your choice.

Chris Gantt-Sorenson will kick off this year’s program on February 28th with a discussion on proposed legislation impacting South Carolina employers, including a primer on South Carolina’s Pay Equity Act, Lactation Support Act, Background Checks and Ban the Box legislation. Continue Reading New Employment Law Series Announced

Perry MacLennan, Chris Gantt-Sorenson and Denny Major
Perry MacLennan, Chris Gantt-Sorenson and Denny Major

Haynsworth Sinkler Boyd recently hosted our annual Employment Law Seminars across South Carolina. These complimentary seminars educated Human Resource professionals on recent employment law updates and changes.

Here is a brief summary of the presentations from our seminars.

LGBTQIA: What Human Resource Professionals Need to Know by Chris Gantt-Sorenson

  • The 4th Circuit Court of Appeals has already stated in dicta that it would recognize a claim alleging gender discrimination or harassment under Title VII for any employee who has been discriminated against on the basis of their gender identity, gender expression, sexual orientation or sexual preference.
  • OSHA states, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
  • OSHA reports 22% of 700,000 transgender employees surveyed indicated they were denied access to gender appropriate restrooms.
  • OSHA’s Sanitation Standard 1910.141(c)(1)(ii) requires employers to provide toilet facilities that are close to their workspace for each gender. OSHA also issued guidance recommending that employers offer single occupancy, gender neutral facilities rather than gender specific. However, if an employer could not do so, OSHA advised employers should provide lockable stalls in each restroom.

Wage and Hour Update by Denny Major

  • The Department of Labor has issued a request for information to solicit input on the salary level test used to help determine if an employee meets the executive, administrative, or professional exemption for the FLSA’s overtime requirement. The DOL has indicated that it intends to use the comments to develop a new proposed regulation regarding this exemption. For now, the 2004 salary level test ($455/week) remains in effect.
  • In recent opinions, the Fourth Circuit Court of Appeals, which is the federal court of appeals that covers South Carolina, has taken a fairly broad view of who is an employee versus an independent contractor and who constitutes joint employers under the FLSA. In a recent case, the Fourth Circuit, after examining several fact specific factors, determined that an exotic dancer was an employee of an exotic dance club rather than an independent contractor. In another recent case, it held that a general contractor was a joint employer over the employees of the contractor’s drywall subcontractor. While these are very fact specific inquiries, it suggests a trend in the way the Fourth Circuit is treating these cases.

Politics in the Workplace by Perry MacLennan

  • The Problem: According to a recent survey from BetterWorks, 50% of respondents have witnessed a political conversation turn into an argument at work (63% of millennials say the same). Thirty percent of respondents say they are less productive since the election due to the political environment. Employees are increasingly taking to social media to express their political beliefs and opinions, sometimes crossing the line into harassment and discrimination, or embarrassing the company and creating a public relations nightmare.
  • The Challenge: Foster a cooperative, productive, inclusive work environment that does not discourage workers from having their own opinions and does not create a workplace that feels more like a dictatorship than a democracy. Develop policies and procedures that strike a balance between being strong enough to justify discipline in certain situations, while not being overly broad, which are tough to enforce and could be illegal.
  • The Solution: Review your current policies and procedures (Social Media Policy, Code of Conduct Policy, etc.) to determine if your organization is compliant with the National Labor Relations Act and other laws governing the regulation of employee speech in the workplace. Make sure the policies emphasize mutual respect, civility, and productivity at work. Finally, include a reminder that anti-discrimination and other company policies apply to an employee’s outside activities, including social media posts.

Immigration Law Update by Garrett Steck and Suyash Raiborde

  • Immigration is seeing and will likely continue to see major changes under the current Administration.
  • Internal immigration compliance enforcement has increased in recent months.
  • The government may eliminate several visa programs, and significantly alter existing visa programs.

Recent Trends with the ADA

  • Both the EEOC and the US District Court of South Carolina have taken the position that an employee’s request for a service animal may be a reasonable accommodation under the ADA even though Title III of the ADA which governs employers does not specifically address service animals.
  • The failure to engage in the interactive process with the employee once a request for a service animal as a reasonable accommodation is made will most likely result in a violation of the ADA and subject the employer to liability for failing to engage in the interactive process.
  • The EEOC’s recent position on service animals as well as recent court decisions do not foreclose the possibility that the EEOC or the courts would find that an emotional support animal may be a reasonable accommodation under the ADA. If a request for an emotional support animal as a reasonable accommodation is made, employers should engage in the interactive process to determine whether the animal is reasonable under the circumstances.
  • Both the EEOC and the courts take the position that leave may be a form of reasonable accommodation under the ADA. Employer’s may have to modify existing leave policies to accommodate an employee’s request for accommodation.

DOR and the Unemployment Insurance Tax Rate by Demetrius Pyburn

  • Respond timely, adequately and effectively to SCDEW’s request for information regarding the reason the employee no longer works for the company.
  • Implement clear employee policies and keep records of any trainings, orientation and counseling.
  • Understand the Unemployment eligibility and appeals process to prevent improper payment and higher tax rates.

Stay on top of all employment law issues and subscribe to our SC Employers’ Blog.

And don’t miss next year’s seminar. Sign up for HSB emails and be the first to know about upcoming events.

The Occupational Safety and Health Administration (“OSHA”) just announced that it is not accepting electronic submissions of injury and illness logs at this time. Further, OSHA intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. See the announcement here.

As a reminder, OSHA in 2016 amended its recordkeeping regulation to require certain companies to submit workplace injury date electronically to the agency each year. OSHA plans to publish the data received from each company on its website (redacting employee identification information). OSHA’s summary of the new regulations can be found online.

This announcement came as no surprise because OSHA had not even created the online portal for employers to use to make the submissions. OSHA promised to provide more updates soon and we will keep South Carolina employers updated through this blog.

 

Last year, the Occupational Safety and Health Administration (“OSHA”) published a final rule that (1) made explicit the requirement that employers have a reasonable procedure for their employees to report work-related injuries and illnesses, and (2) made clear that employers cannot retaliate against employees for reporting work-related injuries. A link to the U.S. Department of Labor’s Memorandum on the rule can be found here. The rule’s impact on post-accident drug testing has caused the most consternation among human resource professionals.

The first question is whether or not your current drug-testing policy contains a “reasonable procedure” for employees to report work-related injuries and illnesses. The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” (29 C.F.R. 1904.35). OSHA has taken the following position as whether automatic post-accident testing would deter or discourage employees from reporting:

To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

Thus, per OSHA, employers should not automatically conduct post-accident drug testing, regardless of the circumstances. A post-accident drug test without an “objectively reasonable basis for testing” would be a violation of this rule.

Of course, there are a number of reasons why always conducting a drug test after an accident is a good idea notwithstanding OSHA’s rule. For example, a company could be subjected to liability if it fails to drug test someone after an accident and that same person is involved in another accident that injuries a third party. If that employee was using drugs during the accident, the injured party could presumably sue the company for negligence because it failed to take action against someone they should have known was under the influence. Also, many commercial general liability insurance policies require automatic post-accident testing.

Thus, employers should review their current policy to determine whether your company requires post-accident drug testing in all circumstances. If so, engage in a cost-benefit analysis.

  • Is it really necessary or worthwhile to drug test after every accident?
  • Does it serve as a deterrent effect to your employees?
  • Does the potential liability of third-party claims outweigh the risk of an OSHA violation?
  • Should employers supplant automatic post-accident testing with the “reasonable suspicion” test in their policies?

The answers to all of these questions will depend in large part on your business and workforce.