Posts Tagged ‘Department of Labor’

Internships: Paid or Unpaid?

Wednesday, June 5th, 2013

application for employment small

With daydreams about laying by the beach on hot summer days looming in the near future, comes the burning staffing question: are we going to need student interns who are on their summer break and (quite possibly more important) do we have to pay them?

As defined by the Fair Labor Standards Act (FLSA), internships with “for-profit” private companies are most likely viewed as employment (i.e. “suffer or permit to work), thus being considered non-exempt from minimum wage and overtime compensation requirements.  However, there are a few circumstances where internships in “for-profit” private companies may be unpaid.  The Department of Labor applies the following six criteria when determining whether an unpaid internship is legal:
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Retaliatory Firing: Don’t Fire Whistleblowers, No Ifs, Ands, or Buts

Wednesday, April 24th, 2013

Employees have a right to report alleged non-compliance to federal and state agencies without fear of retaliatory firing or demotion- no ifs, ands, or buts. A violation of an employee’s protected conduct of reporting potentially illegal or dangerous circumstances, the Department of Labor has made it very clear that retaliatory firing will not be tolerated.

A historical case of retaliatory firing landed one company with a $110,000 back wage payment, as well as fines imposed by OSHA, After an employee reported mechanical issues with his truck and was fired the next day, United Auto Recovery was required to rehire the employee, pay back wages and punitive damages, and was required increase trainings on employee rights, as well as to improve the workplace by posting employee rights posters.

Traditionally OSHA and the EEOC (Equal Employment Opportunity Commission) have been the primary investigators of complaints of retaliatory firing. Other agencies, including the SEC and FTC, have become involved with strong whistleblower protections under Sarbanes Oxley for employees of public companies; new laws including The Patient Protection and Affordable Care Act of 2009, which creates whistleblower protections for employees in the health care sector; and The Dodd-Frank Wall Street Reform and Consumer Protection Act, which provides expansive protection to whistleblowers in the financial services industries.

The bottom line is that you can’t afford to fire a whistleblower unless you have absolute, irrefutable evidence that the firing had nothing to do with the report of fraud, complaint of discrimination, or safety issues.

How Old Are Your Labor Law Posters?

Monday, September 10th, 2012
KPA OSHA Store CO Labor Law Posters

Keep your labor law postings current with KPA’s new Employment and Labor Poster Store.

Have you ever paused in your break room and tried to read the labor law posters hanging on the wall? Perhaps you chuckled when you noticed the ancient soup stains, the faded letters … and the copyright date of 2002.

Maybe labor laws have changed since then?

HR professionals are pretty busy. Updating the state and federal labor law posters is one of the many compliance tasks they need to get done as quickly as possible.

This is why KPA has launched an easy-to-use online store with state and federal posters for the entire U.S. You can:

  • Buy posters in English, Spanish or bilingual (English and Spanish) formats.
  • Subscribe to annual updates (optional). When revisions happen, updated poster information will be sent to you via email, or replacement posters will be automatically shipped to your site.
  • Receive a separate NLRA poster with the standard state and federal poster combination.
  • Sign up for store coupons and promotions.

While a 10-year-old poster covered with Joey’s goulash accident may seem a tad funny when you’re sipping your morning coffee, it can trigger a hefty fine from the Department of Labor. Businesses are required to feature federal and state labor law postings in common areas frequented by employees and applicants.

We hope you’ll enjoy our new Employment and Labor Poster Store. If you have any questions, call one of our labor law poster experts at 1 (888) 369-9013.

Monthly Facility Inspection List

Friday, July 29th, 2011

As the last business day in July, today is a great day to take care of your monthly facility inspections.

There are a few items in your dealership that need to be inspected and updated every month. There should be tags on these items for signatures and dates. These are safety inspection items, and federal law requires that they are monitored and maintained by the dealership on a monthly schedule. Here’s the short list:

Monthly Facility Inspection Checklist
Emergency lighting (short test)- make sure all exit signs (aka luminaries) are present and clean. Activate the system long enough to test each exit sign. Document defects and corrective actions. Check each exit sign for functional back-up system. If necessary, replace back-up power sources (battery packs).
Above Ground Storage Tank- Make sure monthly inspections are conducted as required by SPCC regulations.
First Aid Kits- Check the contents and make sure supplies are accounted for, and at the correct level. Make sure first aid kits are properly mounted and accessible. Sign and date inspection card.
Elevators with a phone or fire department call button- The requirement does not specify who is to perform the operation- maintainence company, elevator inspector, equipment owner or lessee- only that it is performed and that a written record of findings is kept on premises. Periodically, circuts and relays should be checked.
Eyewash stations- Check signage, make sure area is clear and the station is accessible at all times. It should be clean and ready for an emergency. Check portable stations for fluid expiration dates. Sign and date the inspection card.
Fire extinguishers- needle should be in the green, inspect for signs of damage or use. Make sure extinguisher signs are present and extinguisher is properly mounted.
Lifts- perform leak test: check for functionality, oil level and leaks in rolling bridge, wheel free, valves and hoses. Check moving parts for excess play, wear lubrication, and grease. Test switches and terminals to make sure the electrical components are in good shape. Check for overall condition including rust, damage wear, and alignment. Make sure decking and covers are secure, check anchor bolts, and all safety features for functionality.

Depending on your size, kinds of services that you offer, and your location, there may be other monthly inspection items that are part of your dealership’s safety responsibilities. You should talk to your KPA safety engineer to find out about other monthly inspection requirements specific to your state or local area.

It is also a good idea to keep an eye on other time-sensitive inspection items that need annual or periodic inspection and documentation (fire alarm systems, oil/water separators, new product tanks, lift inspections, permit renewals, waste storage areas…); they may need attention soon.

 

OSHA Fines Auto Parts and Used Car Dealer $49,000 for Safety and Health Violations: Conclusion

Wednesday, May 18th, 2011

Yesterday’s post discussed training violations OSHA issued to a parts and used car dealership in Illinois. Physical hazards were also a large part of the 14 safety and 6 health violations facing the company.
Here is the list of physical hazard citations from Bill Smith Auto Parts, Inc, along with recommendations for improvement.*

 

Violation image Violation descriptions and recommendations for improvement
Missing machine guarding 

This usually happens on parts grinders. Check the machine for side guards, correct adjustments on the tool rests and tongue guards, and proper anchoring. If in doubt, this 2 min. video gives a good overview of grinder safety.

Improperly maintained industrial trucks 

Check that forklifts and other lift trucks are maintained in working order according to the manufacturer’s recommendations through. You should include documentation of maintenance.

 

This could also be a housekeeping issue. Outdated and unused equipment should be removed from the premises.

Improperly stored hazardous materials 

If they are flammable, containers need to be grounded, or outfitted with a bonding wire.

All containers need to be approved for their contents, and they need to have lids. Document inspections storage areas, and everything should be labeled.

Lack of guarding on open-sided floors 

All elevated work surfaces, including but not limited to alignment or lube racks, in ground lube pits and storage platforms should have proper fall protection measures.

Failing to properly store compressed gas cylinders 

Compressed gas cylinders should be securely fastened to rigid structures so they won’t fall or be knocked over.

Lack of guarding on pulleys and other equipment lower than 7 feet from the floor: struck-by hazards 

Replace guards/restraints on pulleys to ensure safe operation.

Damaged electrical cords in use 

A very common problem that poses a serious shock hazard. The damaged cord should be replaced. Never splice an electrical cord as a repair method, and make sure the cord is the right length to avoid using extension cords as permanent wiring. This handy Extension Cord Checklist is available for more information about shock hazards.

Unlabeled hazardous material containers  

Apply a “Hazardous Waste” label to the container and fill out the required information. Typically, this violation is cited with language like “potentially hazardous waste” because in general, the inspector does not actually test contents of each and every barrel. That is why all containers need to be labeled, including “non-hazardous waste.”

Use your imagination. Unsanitary conditions in restroom 

You might not be familiar with OSHA code 29 CFR 1910.141, but it requires that all restroom facilities, particularly those accessible to employees, remain clean and sanitary at all times.

Failing to post visible “no smoking” signs in areas where flammable materials were present 

All areas where smoking is prohibited in the facility must be labeled “no smoking or open flame.” Including flammable or combustible storage areas.

For more information, read this post, “Danger in Detail.”

“Employers are responsible for knowing what hazards exist in their facilities and for following OSHA standards to ensure the safety and health of their workers,” explains Tom Bielema, director for OSHA’s Peoria office. While Bill Smith Auto Parts is working with OSHA to use the inspection report as an opportunity for improvement, all  of these violations are avoidable, and precautionary measures should be part of your facility’s daily routine.

This is an opportunity for you to look over your facility, check your paperwork, and share this list with your employees as an educational opportunity, because the best environmental health and safety strategies are supported at every level of the company.

Many, if not all, violations and workplace accidents are preventable with KPA’s services. KPA’s Environmental, Health, and Safety (EHS) service is designed for dealerships to effectively manage and document safety and environmental compliance. EHS services include regular on-site facility visits conducted by a professional with environmental safety compliance experience including OSHA and EPA, an electronic MSDS database, online training courses, required signage and labels, and 24 hour hotlines. All of this information is available at your fingertips through myKPAonline.com, which features a dashboard indicating your facility’s overall level of environmental health and safety.

In the event of an emergency – including inspection visits by federal or state inspectors – your KPA engineer is only a phone call away.
*images are from KPA’s database, and do not represent the exact conditions at Smith Auto Parts.

The Lawsuits are Coming, Get Ready to Pay

Friday, April 22nd, 2011

  The Cleveland Plain Dealer reported that over 6,800 private-sector lawsuits were filed nationwide in 2010. The DOL (Department of Labor), handled about 32,000 wage and hour complaints in 2010, a jump of 33 percent in just two years.  The Equal Employment Opportunity Commission reports that pay and promotion cases are now the biggest category of employment discrimination filings but discrimination cases are also on the rise.  Broadly defined but complex new regulations on ADA (Americans with Disabilities) and GINA (Genetic Information Non Discrimination Act)  make it likely that even the best intentioned employer may inadvertently discriminate against an employee or applicant.

  Looking forward into the rest of 2011 and then on to  2012 employers should expect more new rules, with the DOL, ICE and IRS allocating more resources towards enforcement of those rules.  The DOL is planning to issue new rules on the Family Medical Leave Act and the Fair Labor Standards Act.  The National Labor Relations Board has proposed a new rule that, if adopted, would require almost all private-sector employer in the US to notify employees about their rights to unionize.

 The DOL has hired 250 new investigators and has launched the “We Can Help“ program that includes a website and bilingual public service ads designed find and correct the incorrect classification of exempt employees and other violations of wage and hour laws.  To “help” employees even more, on November 19, 2010, the U.S. Department of Labor announced a joint initiative with the American Bar Association to help employees find lawyers to enforce their rights under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). Since December 13, 2010, employees who bring FMLA or FLSA complaints that cannot be resolved by the Department of Labor have been given a toll-free telephone number to contact a newly created ABA-approved attorney referral system that will provide information about participating attorneys in their geographic area.  The U.S. Immigration and Customs Enforcement (ICE)  will continue to increase its investigations and raids on employers who hire illegal workers, over 1000 notices were issues in the first 4 months of 2011. Don’t forget the IRS, in 2011 the IRS will conduct over 6,000 payroll tax audits focusing on companies misclassifying workers as independent contractors, fringe benefits and executive/deferred compensation, as part of a new federal and state focus on the miscallification of workers as independent contractors. 

Complex regulations, increased enforcement and easy access to plaintiff’s attorney are creating the “perfect storm” for employment lawsuits.  Are your payroll and employment practices ready? If you don’t have EPL (Employment Practices Liability) coverage call your broker now.  Consider an independent audit of your HR practices. Use automation (software) to ensure consistent process and good documentation. Plus keep your attorney on speed dial, you probably will be calling  them more than ever.

Join the conversation:  Are you worried about employment lawsuits or audits in 2011?

Department of Labor Clarifies Position on Service Advisors Classification

Friday, April 8th, 2011

On April 5th, the Wage and Hour Division of the U.S. Department of Labor clarified that service advisors are not exempt from overtime. While the current regulations states “a service manager, service writer, service advisor or service salesman who is not primarily engaged in the work of a salesman, partsman or mechanic is not exempt” (29 C.F.R. § 779.372(c)(4))”, beginning in 1987, the Department had adopted an enforcement position that did not deny exemption from overtime payment.  The Department has reversed this enforcement position and dealerships are advised to take into account all earnings for service advisors during the relevant time period including salary plus any commissions to determine the appropriate amount of overtime pay which may be due.

A more complete review of the new enforcement position is available from our partner,  Ford & Harrison at http://www.fordharrison.com/shownews.aspx?Show=7117

Internships: Paid or Unpaid?

Thursday, March 24th, 2011

With daydreams about laying by the beach and warm, hot summer days looming in the near future, comes the burning staffing question: are we going to need student interns who are on their summer break and (quite possibly more important) do we have to pay them?

As defined by the Fair Labor Standards Act (FLSA), internships with “for-profit” private companies are most likely viewed as employment (i.e. “suffer or permit to work), thus being considered non-exempt from minimum wage and overtime compensation requirements.  However, there are a few circumstances where internships in “for-profit” private companies may be unpaid.  The Department of Labor applies the following six criteria when determining whether an unpaid internship is legal:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training in which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Are you abiding by the Fair Labor Standards Act with your summer interns?

Does having “Adonis DNA” provide protection under GINA?

Saturday, March 12th, 2011

In the midst of the Charlie Sheen media frenzy, several important questions in the Sheen vs. CBS/Warner Bros. dispute are being overshadowed by the sensational personal videos and interviews.  Should an employee’s personal life affect his/her employment?  What if that employee is making vast quantities of money for himself/herself and the company? Does having “Adonis DNA” provide protection from non discrimination in the termination process under the new GINA (Genetic Non- Discrimination Act) regulation?

With Charlie Sheen’s controversial personal antics, CBS and Warner Bros. finally starting questioning fitness for duty. Some ask why it took this long for them to finally take note of Sheen’s personal actions.  Did it have anything to do with the fact that Charlie Sheen helped make “Two and a Half Men” one of the top syndicated shows on television?  Probably. Other high earners in the entertainment industry, professional sports and business have been given considerable leeway from normal standards of conduct.  But in the end, high earners are not exempt from negative and/or questionable personal public image, even if means the loss of high earnings for the employee and high revenue for the company he/she represents.

Warner Bros. indicated that they fired Sheen because his erratic personal life became a liability for the company and started to affect his ability to perform on the show. Notice that the employer was very careful to focus on the ability to perform the job (fitness for duty) as the reason for termination. While most employees will not have a contract and the employment relationship will be “employment at-will” it is still very important  that the employee is never fired for anything that could be construed as discriminatory. While “ having tiger blood” or being “a rock star from Mars” are not protected classes (at least not yet) employers must ensure that employees are never fired because of race, gender, sexual orientation, national origin. “Adonis DNA” certainly sounds like a genetic issue, but  isn’t covered under GINA (Genetic Information Non-discrimination Act). There may be upcoming legislation to make trolls a protected class after Jon Cryer’s revelation on the Conan O’Brien show.

Congressional Hearings on OSHA and Job Creation

Thursday, February 17th, 2011

Hearings began on February fifteenth with a testimonial from Secretary Soils on the Labor Department’s policies and priorities. They continued yesterday with several  witnesses from small business leaders and input from committee members including committee chair Rep. John Kline (R-MN).

Two specific OSHA mandates were examined, The now-withdrawn proposal to add an MSD column to the OSHA 300 log, and the proposed occupational noise interpretation.

The result of this hearing will have an effect on the Department of Labor’s budget  that currently increases spending for agencies that regulate employers including auto dealerships. Read more here:

http://republicans.edlabor.house.gov/News/DocumentSingle.aspx?DocumentID=225349″>Kline Statement: Hearing on Policies and Priorities at the U.S. Department of Labor | Education & the Workforce Committee