News

OSHA Proposes to Extend Crane Operator Certification Requirement

September 11, 2017

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In 2010 OSHA promulgated a final rule regulating cranes and derricks in the construction industry, “Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926. 1440, et al.)”. Shortly after the final rule was issued, OSHA published the “Small Entity Compliance Guide” on the new standard, which created conflict between OSHA and the stakeholders involved in the use of cranes, including employers, unions, and firm offering crane operator training and certification. In particular, OSHA took the position that an operator is qualified to operate a crane if certified for the “type and capacity” of equipment or for higher-capacity equipment of that type.

In November 2012, the International Union of Operating Engineers (IUOE) petitioned OSHA to reverse its interpretation and to amend the “capacity and type” language in Sections 1926.1427(b)(1)(ii)(B) and 1926.1427(b)(1), believing that crane capacity should not be used as a factor for operator certification. OSHA’s response was to hold a stakeholder meeting in April 2013 and gather additional information; and in May 2013, it proposed to extend the compliance date to November 10, 2017. In September 2014, after a public comment period, OSHA announced that it was allowing a three year extension for the crane operator certification requirements to November 10, 2017. During this extension period, OSHA intended to develop a new standard that addressed qualification requirements, including the role of operator certification. OSHA is now considering further extending the deadline to November 10, 2018 in order to address stakeholder concerns and allow further public comment. The current public comment period is through September 29, 2017.

Employer Responsibilities In Disasters

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Many employers wonder what their responsibility is during a disaster. In particular, how does employer liability change in a “disaster” such as Hurricane Harvey versus inclement weather?

The top area for confusion and concern is the payment of wages in the context of a natural disaster. Under federal wage laws, Non-Exempt Employee are paid only for time worked, regardless of whether their absence is due to the employer closing the office/jobsite or the employee’s decision to stay home or evacuate. If the worksite is open and the employee leaves or fails to come in, the employee does not have to be paid for those work hours missed. An exception exists for employees on-call or waiting at the employer’s premises and unable to use their time for their own purposes. In such waiting/on-call situations, the employee must be paid for all time on premises. Exempt employees must be paid their full salary if the employer shuts down work because of adverse weather conditions for less than a full work week, or if the employee only works a partial day as a result of the employer’s decision to close. However, unless there is a company policy to the contrary, the employer can require the employee use his/her accrued paid-time-off (“PTO”) for the absence. If the employee does not have available PTO, the employee is entitled to his/her full salary if the employer decides to close due to weather. Nevertheless, the employee does not have to be paid if the employer is open for business but the employee is absent for personal reasons. In such event, the employee can be required to use their accrued PTO. If the employer has a leave policy but the employee does not have any PTO available, the employee can be placed on unpaid leave, however the employer cannot deduct salaries for a partial-day absence, even though PTO balance deductions are allowed for partial-day absences. As a result, if an exempt employee without a leave balance misses half of a workday, the employer must pay that employee his/her salary for the entire day, with no partial deduction for the absence. Meanwhile, an employee with a leave balance in the same scenario could be required to use half a day of PTO to cover the absence.

Further, disasters may negatively impact payroll processing. Texas law requires that employees be paid twice a month for non-exempt employees and at least once per month for FLSA-exempt employees. The Texas Workforce Commission advises that in the event of a change to the employer’s designated payday as a result of disaster related processing issues, the employer should provide written notice to employees explaining the last old payday, the first new payday, and the next-following new payday. Employers must also provide written notice about any delays to wage payments or changes in the form of wage payments, such as issuing paper checks instead of making direct deposits. Employers might want to assist employees with pay-day advances or consider paying full or partial wages for a set duration, even when not required, to assist employees until government assistance is available, but such payments would be treated as wages for tax purposes for both the employer and employee.

Disasters may present an opportunity for employees to work from home or otherwise work remotely. Non-exempt employees must be paid for all time spent working remotely, even if the employee was not authorized. Exempt employees must also be paid their regular salary when working remotely, even if the exempt employee spends only a few minutes working remotely. The exempt employee can be required to use appropriate PTO for the balance of the time when he/she only works a partial workday.

Not all disasters are disasters. A disaster is not a “qualified disaster” unless the President of the United States declares it as such. Further, only governmental entities can issue a declaration of a “state of emergency.” Employer duties do not change upon the declaration of a state of emergency. In fact, the Texas Labor Code protects employees from discharge or discrimination because of an evacuation pursuant to such a governmental order. The Texas Labor Code creates employer liability for an employee’s lost wages or benefits resulting from a violation. The statute is broadly interpreted to cover voluntary and well as mandatory evacuations, and does not actually define which government officials may issue such orders. Therefore, employers may not know about an evacuation order impacting its employees. In such event, employers should tread lightly and not take adverse action against its employees because of an evacuation work absence without specific information to the contrary that the absence was not disaster related.

Employers may want to assist their employees with disaster relief payments. Qualified disaster relief payments can be made to employees without incurring income or payroll tax consequences under IRS Section 139. However, to qualify as a “disaster relief payment,” the amount or benefit must reimburse or pay reasonable and necessary personal, family, living or funeral expenses arising from a “qualified disaster,” or reimburse or pay reasonable and necessary expenses resulting from the repair or rehabilitation of a personal residence or its contents, to the extent attributable to a qualified disaster. Employer disaster relief payments are applicable only to the extent not covered by insurance or otherwise.

If you have questions or need additional information, contact Cutler-Smith, P.C. for assistance.

Trump Administration Rescinds 2012 DACA Program

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On September 5, 2017, Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals (“DACA”), created by executive order under the Obama administration, is unconstitutional and “rescinded.” The DACA program was implemented in 2012 and provided deferred removal action for nearly 800,000 illegal immigrants for a renewable two-year term, work authorization and other benefits, including participation in the social security program. The recipients of the program were dubbed “Dreamers.” Under the DACA program, individuals were able to request DACA status if they were under the age of 31 on June 15 2012, came to the U.S. before turning 16, have continuously lived in the country since June 15, 2007, have a high school diploma or GED certification, been honorably discharged from the military or still be in school, and do not have a criminal record. DACA did not confer legal status.

The Attorney General said in his statement that the Acting Department of Homeland Security Secretary Elaine Duke would initiate a wind down process. No current beneficiaries of the program would be affected before March 5, 2018; no applications filed after September 5th will be acted on; and all existing work permits will be honored until their date of expiration up to two full years from September 5, 2017.

The solution for protecting undocumented youth will now reside with Congress.

United States District Court of Eastern District of Texas Invalidates Department of Labor’s 2016 Overtime Rule

September 1, 2017

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On August 31, 2017, Judge Amos Mazzant of the United States District Court in the Eastern District of Texas, ruled that the Department of Labor’s 2016 Overtime Rule is unlawful. The announcement came just one day after the United States 5th Circuit Court of Appeals granted to 60-day extension to the Department of Labor (the “DOL”) to decide whether to appeal the November 2016 nationwide temporary injunction issued by Judge Mazzant in response to the DOL’s final overtime rule that would have been effective on December 1, 2016. Since that November ruling, the DOL has been unable to implement any of the proposed overtime changes.

In May 2016, the DOL issued its final overtime rule announcing, among other things, a historical change to the minimum annual salary requirement from $23,660 annually to $47,476. The change would effectively require all salaried workers earning less than $47,476 be automatically eligible for overtime, regardless of their duties and job function. Immediately after the DOL’s ruling, a 21-state coalition, including Texas, filed two lawsuits seeking an injunction to block the rule from taking effect. The final rule was to go into effect on December 1, 2016. Just days before the final rule went into effect, Judge Mazzant issued the injunction.

Overtime rules were established in 1938 when Congress enacted the Fair Labor Standards Act, creating the now-familiar structure (for most employees), broadly described as the existence of a minimum wage, subject to overtime pay at 150% thereof, for all hours above 40, worked in a given week, by a given employee. However, since 1938, employees engaged in a “bona fide Executive, Administrative, or Professional capacity” have been exempt from the overtime rules (The “EAP Exception”).

Congress did not define “bona fide, executive, administrative, or professional,” but it did delegate authority to establish such definitions to the Secretary of Labor (the “Secretary”), who, in turn, delegated to the DOL. Beginning in 2004, the DOL has used a three-part test to identify individuals subject to the EAP Exception: (i) payment on a salary basis; (ii) such salary being at least at the minimum salary level established by regulations (currently $23,660 annually); and (iii) performance of bona fide executive, administrative, or professional duties, as established by regulations.

In 2004, the overtime rules changed to increase the minimum annual salary level to $23,660. Under the 2016 Overtime Rule, minimum salary levels would increase from $23,660 annually to $47,476 annually. The clear result would have been a shift away from the traditional, duties-based analysis set forth in the statute, because all salaried employees paid less than $47,476 annually would be eligible for overtime, regardless of their job function. Additionally, the proposed Overtime Rule created an automatic updating mechanism, adjusting the minimum salary upward every three years, commencing January 1, 2020.

In making his latest ruling, Judge Mazzant found that the FLSA clearly expresses Congress’s unambiguous intent to define the EAP Exception with regard to job duties. The Court also found that the minimum salary requirement of the 2004 regulations is permissible, because it serves only to assist the DOL in identifying those employees whom Congress intended to exempt; but that shifting to a salary-only analysis was clearly beyond the DOL’s authority, since such a radical shift would be in opposition to Congress’s intent in applying the EAP Exception based on a job-duties analysis.

The DOL’s 2016 proposed Overtime Rule never went into effect, and the salary element of the traditional, three-point test remains at $455 per week/$23,660 per year, as well as the threshold for highly-compensated employees remains at $100,000 per year. However, depending on whether the DOL appeals Judge Mazzant’s first and second rulings, these, and other matters may change as a result of new court decisions and DOL rulings. The new Secretary of Labor nominee Alexander Acosta has expressed opinions that suggest he would support updating the overtime rules to some degree but has not gone into detail.

For now, employers are to continue under current overtime rules and encouraged to perform an internal audit of their current employee job title, functions, and salaries to be ready in the event of any changes.

Contact Cutler-Smith, P.C. with any questions or for any assistance in navigating these issues.

Have You Prepared Your Distracted Driving Policy?

August 30, 2017

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Starting September 1 2017, Texas will institute a state-wide ban on texting and driving. It will be illegal to read or send text messages or post on social media while operating a moving vehicle. Drivers caught texting while the vehicle is in motion are subject to fines up to $100.00. The bill, dubbed the Alex Brown Memorial Act, was signed into law on June 6, 2107. Alex Brown was a 17 year old high school student who died in a car crash while texting. The new law will ban drivers from reading, writing or sending electronic message via electronic device while operating a moving vehicle. Drivers will still be allows to make and receive calls, unless otherwise prohibited. Use of Bluetooth and other hands-free devices is allowed and even encouraged. Use of a phone’s navigation system and music apps are allowed as well. The law does not preempt stricter hands-free ordinances currently enacted in several Texas cities.

We encourage employers to develop and implement an anti-distracted driving policy for their fleet drivers.

Labor and Employment Alert: Texas Supreme Court Rejects a Cause of Action for Compelled Self-Defamation

June 26, 2017

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A defamation claim generally requires “publication” of a false and defamatory statement of fact to a third party. Publication occurs when the defamatory statement is communicated to a third person who can understand its defamatory import and who actually does so understand. Under the self-defamation theory, a former employee’s disclosure of a defamatory statement to a prospective employer can show “publication” because he or she is effectively compelled to publish the statement when asked why he or she left former employment.

In May 2017, and in a case of first impression, the Texas Supreme Court recently held that compelled self-defamation is not recognized under Texas law as either an element of a defamation claim or as an independent cause of action.

In Exxon Mobil Corp. v. Gilberto Rincones, Rincones was a technician working for an Exxon contractor and was terminated after testing positive for marijuana following a random drug test performed by a third-party administrator approved by Exxon. He claimed that he did not use illegal drugs, that the sample was not actually his, and that there had been “questionable testing procedures.” He then offered another sample that had been tested by a private doctor, which was negative for marijuana (though the screening threshold was substantially higher than the one his employer had used). His employer refused to accept these results and Rincones did not complete a rehabilitation program as required to be reinstated. Rincones sued alleging, among other things, that the defendants had tortiously compelled self-defamation a result of having to report to future employers that he had been terminated for failing a drug test. The Texas Supreme Court rejected the self-defamation claim and “expressly decline[d] to recognize a theory of compelled self-defamation in Texas.”

First, the Court reiterated that a plaintiff cannot recover for injuries as a result a publication if the plaintiff consented to, authorized, invited or procured that publication. The Court next explained that recognizing compelled self-defamation “would risk discouraging plaintiffs from mitigating damages to their own reputations.” Otherwise, any employee who disagrees with his or her employer’s termination reason could unilaterally create an actionable tort against the employer, and the availability of increased damages might encourage an employee to publish a defamatory statement when that could have been avoided.

The Court also “fear[ed] that accepting the compelled self-defamation doctrine would unacceptably impinge on the at-will employment doctrine” and found that the claim is “incompatible with Texas’s at-will employment system.” This is because a claim of compelled self-defamation would require employers to conduct investigations and make accurate findings before taking any action against an employee or risk being sued – and employers have no duty to conduct such an investigation under Texas law.

Finally, “recognizing compelled self-defamation could also stifle workplace communication by chilling honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only ‘name, rank and serial number’ references.”

Texas now joins with an emerging majority of state courts that have considered the issue and rejected compelled self-defamation, including those in Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania, and New York. Moreover, Colorado and Minnesota have limited the claim by statute.

Department Of Labor Withdraws Administrator’s Interpretations for Joint Employer and Independent Contractors

June 15, 2017

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On June 7, 2017, Alexander Acosta, U.S. Secretary of Labor, announced an immediate withdrawal of two Wage and Hour Division Administrator’s Interpretations (“AIs”) on join employment and independent contractor status issued by the Obama Administration. In January 2016, AI No. 2016-01 addressed joint employment under the Fair Labor Standards Act (“FLSA”) and Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), and viewed as an attempt to expand the definition of joint employment. In July 2016, AI No. 2015-1 was issued to address the definition of independent contractors under the FLSA which many opponents viewed as an attempt to narrow those classifications.

The DOL made clear that removing these AIs does not change an employer’s legal responsibility under the FLSA or MSPA, as reflected in the long-standing DOL regulations and case law. However, withdrawing these AIs is likely to signal a policy shift in how the DOL interprets and enforces matters relating to joint employment and independent contractors.

Trustees Approve Changes to Dallas ISD Evaluation Criteria and Relative Weights on Construction Projects

May 30, 2017

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Dallas ISD Construction Services UPDATE
May 26, 2017

On May 25, 2017, the Dallas ISD Board of Trustees approved a change to the district’s Bond/Construction Services project evaluation criteria and relative weights. The change removed the five-point score previously granted to businesses with past experience doing business with Dallas ISD. The five points now apply to the “proposal pricing” category, which gives more weight to businesses’ proposed project pricing when bidding for district construction and renovation projects.

The revised criteria is expected to broaden opportunities for additional construction companies to participate in district building projects. The revised evaluation criteria also places equal weight on bidders’ experience in higher education and K-12 construction or renovation.

Questions or requests for additional information should be directed to Wilton Munnings, M/WBE Manager for Dallas ISD Construction Services.

Cutler-Smith, PC is proud to announce that Spike Cutler and Garrin Fant are now Texas Board Certified attorneys in the area of Construction Law

February 7, 2017

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Board Certification is a mark of excellence and a distinguishing accomplishment – one that roughly 10% of Texas attorneys claim. Today, Cutler-Smith, PC is proud to announce that Spike Cutler and Garrin Fant are now Texas Board Certified attorneys in the area of Construction Law. Congratulations Spike and Garrin!

Texas Board of Legal Specialization

February 1, 2017

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We are proud to announce that Sewall C. (Spike) Cutler, Jr. and Garrin B. Fant have completed all necessary requirements and are now recognized as Board Certified in Construction Law by the Texas Board of Legal Specialization. In 2016, the Texas Supreme Court approved construction law as the newest specialty area. To be eligible for certification, an attorney must have five years of experience practicing law, with a minimum of three years experience in the specialty area. It requires an ongoing involvement in the specialty area which is periodically substantiated with references from peers in that field. It also requires annual professional refreshment through TBLS approved, continuing legal education course work to stay abreast of current trends in law.

The Texas Board of Legal Specialization is one of the largest board certification programs in the nation. Board Certification is a mark of excellence and a distinguishing accomplishment. Within the Texas legal community, Board Certification means an attorney has substantial, relevant experience in a select field of law as well as demonstrated, and tested, special competence in that area of law. The attorney certification process is governed by the Texas Plan for Recognition and Regulation of Specialization in the Law. Upon meeting all qualifications and passing the examination, an attorney is considered Board Certified and is conferred a Certificate of Special Competence in a specialty area of law.