Monthly Archives

August 2016

What Employers Should Know About OSHA’s Enforcement of the Food Safety Modernization Act

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Lost in all the landscape-altering changes made by OSHA during the last 18 months was its adoption of enforcement procedures for handling retaliation claims under the FDA’s Food Safety Modernization Act (“FSMA”). Employers across many industries should take notice of the far-reaching provisions of the FSMA. It not only applies to food processing employers, but any entity that is involved with the transportation or handling of food products, including trucking companies, distribution centers, warehouses, and cold storage.

Enacted in 2011, the FSMA prohibits an employer from terminating or discriminating against an employee for, among other things, raising a concern about food safety or refusing to comply with an employer’s order to violate a law or ordinance regarding food preservation. The FSMA is one of twenty-two (22) whistleblower statutes enforced by OSHA, and the most recent law for which whistleblower procedures were implemented. OSHA adopted the final rule setting forth its enforcement procedures under the FSMA on April 18, 2016.

Here’s what employers should know about the FSMA:

1. Which Employers are Subject to the FSMA? The FSMA applies to any entity “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”

2. What Employer Actions are Prohibited? The FSMA prohibits employers from discharging or otherwise discriminating against an employee because the employee, “whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any other person acting pursuant to a request of the employee)” does any of the following:

a. Reports, or is about to report, any violation of a food safety rule, regulation, standard, or order;
b. Testified or is about testify in a proceeding regarding such a violation;
c. Assisted or participated or is about to assist or participate in such a proceeding; or
d. Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the FSMA, or any order, rule, regulation, standard, or ban.

3. When and How Claims Must be Filed. Claims under the FSMA must be filed within 180 days of the alleged retaliation. A claim may be submitted either orally or in writing. With the consent of the employee, complaints may be filed by any person on the employee’s behalf.

4. OSHA’s Enforcement Procedure. Upon receipt of the complaint, the Secretary of Labor must provide written notice to the employer alleged to have violated the FSMA of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to respond.

5. Standard for Enforcement. The Secretary should continue the investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent, in its response, has not demonstrated, through clear and convincing evidence, that it would have taken the same adverse action in the absence of that activity.

6. What Can OSHA do if Liability is Found? If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

7. Objections to OSHA’s Findings. The complainant and the respondent then have 30 days after the date of the Secretary’s notification in which to file objections to the findings and/or preliminary order and request a hearing before an administrative law judge (ALJ) at the Department of Labor. The filing of objections under FSMA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

8. Hearings under the FSMA. If a hearing is held, the statute requires that it be conducted “expeditiously.” An order must be entered by the Secretary within 120 days after the conclusion of any hearing, which may provide appropriate relief or deny the complaint. Until the final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing employer reasonable attorney fees, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Additional appeal rights to the United States Courts of Appeals are available following the issuance of a final order.

OSHA enforcement is much broader than its fundamental mission of keeping workers safe. Employers should recognize that they cannot retaliate against employees who either raise concerns relating to the food products the employer processes, distributes, or handles, or identify issues about workplace safety hazards.

Now is the time to implement procedures for handling complaints made by employees relating to food safety. Make sure any such complaints are taken seriously and fully investigated, with the results documented in writing. Do not terminate or discriminate against any employee who raises such an issue. Taking these steps will help avoid a retaliation claim under the FSMA.

Fifth Circuit Overturns $226,000 Fine Imposed on a Staffing Company for Completing Section 2 of Form I-9 Remotely

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The Department of Homeland Security (DHS) takes the position that employers must physically review original documents in the actual presence of a new hire when completing the attestation in Section 2 of the Form I-9 (the attestation is a statement from the employer indicating the employer reviewed the new hire’s documents and the documents belong to the new hire). In other words, DHS prohibits employers from reviewing copies of documents remotely or via video when completing a Form I-9. In a decision published on August 11, 2016, the United States Court of Appeals for the Fifth Circuit found that a Minnesota staffing company was not liable for a $226,000 fine it received when it completed Section 2 in Minnesota after reviewing copies of the Form I-9 documents presented by new hires located in El Paso, Texas.

While the Fifth Circuit’s holding contradicted ICE’s position on Section 2 requirements, the holding focused solely on the notice due to employers when administrative agencies assess penalties for violations of ambiguous laws. The court even notes at the conclusion of the opinion that DHS has discretion to require employers to follow certain procedures for completing Section 2 within the confines of the INA. In fact, since 2013, DHS has done so, and noted in its guidance that the Section 2 attestation must be completed by an individual who reviews original documents within the physical presence of an employee.

Clients with questions regarding Form I-9 practices should consult your HR Ideas representative.

DHS Proposes Changes to E-Verify Program in 2017

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As employers continue to enroll in the E-Verify program at a high rate, the United States Department of Homeland Security (DHS) is considering various changes to this key program. Some of these changes place additional obligations on the employer. E-Verify is DHS’s internet-based system through which employers may electronically verify the employment eligibility of newly hired employees. Employers do so by opening an E-Verify case and entering the information contained on the Form I-9, Employment Eligibility Verification.

DHS is turning its attention to establishing a more robust E-Verify program and achieving greater employer compliance. In just a few years, DHS’s E-Verify Monitoring and Compliance division (E-Verify M&C) has increased its compliance actions with employers from just over 42,000 to nearly 87,000. Compliance actions include telephone calls, e-mails, desk reviews (desk audits), and site visits. In addition, E-Verify M&C has dramatically increased the number of referrals that it makes to other federal agencies to investigate employers. Although DHS refuses to disclose the nature of these referrals, it appears that a significant number have been to the United States Department of Justice’s Office of Special Counsel (OSC) to investigate employers for possible discriminatory application of the E-Verify program. DHS also has acknowledged that it is in the early stages of developing a process to impose sanctions against employers that fail to comply with the E-Verify Memorandum of Understanding (MOU). Each E-Verify employer electronically signs the MOU when enrolling in the program.

This summer, DHS has made other proposals to change the E-Verify program. It is likely that these most recent proposals will be implemented in some form over the next few months. The changes, as currently proposed, include the following:

E-Verify Case Inquiry After Form I-9 Reverification:
Under the existing procedures, an employer that is enrolled in the regular E-Verify program opens an E-Verify case inquiry only for newly hired employees, not for existing employees who are subject to Form I-9 reverification (section 3 of Form I-9). (Employers that are federal contractors with FAR E-Verify obligations may be required to open an E-Verify case as to existing employees if they are assigned to the covered federal contract. The FAR E-Verify obligations are broader than are the obligations of employers enrolled in the regular E-Verify.)

DHS proposes to expand E-Verify case inquiries to align with the full Form I-9 Employment Eligibility Verification process. DHS will require that the employer complete an E-Verify inquiry when the Form I-9 is reverified because an existing employee’s temporary employment authorization is expiring. The employer will have three business days after completing the Form I-9 reverification to open an E-Verify case inquiry. If a Tentative Nonconfirmation (TNC) is received, the employer must follow the same procedures that apply for TNCs for newly hired employees. Therefore, the employer will meet with the employee and provide the employee with an opportunity to contest the TNC. If the TNC is resolved, the employer may continue to employ the individual. If the TNC is not resolved, E-Verify will issue a Final Nonconfirmation (FNC). The employer then must inform E-Verify of whether the employee continues to be employed. If the employer does not terminate the employee, the employer may be deemed to have knowingly employed someone who is not authorized to work lawfully in America. If DHS audits, the employer also may be fined at a higher rate.

The employer must open an E-Verify case on reverification even as to employees for whom the employer has not completed an initial E-Verify inquiry. If a Form I-9 reverification is required, an E-Verify case inquiry must be made regardless of whether there is an existing E-Verify case relating back to the person’s hire.

EEOC Issues Proposed Guidance on Retaliation Claims

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The Equal Employment Opportunity Commission (EEOC) is almost ready to issue its guidance on retaliation claims. Given the magnitude of these claims, such guidance is overdue. In fiscal year 2015, the EEOC, the federal watchdog for employment discrimination statutes, received 39,757 charges of discrimination asserting retaliation claims. This accounted for 44.5% of all the charges received.

With retaliation claims on the rise and accounting for almost half of the charges filed, the EEOC issued proposed enforcement guidance on retaliation and related issues on Jan. 21, 2016. The public comment period ended on Feb. 24, 2016. It is unclear when the guidance will take final form. Not surprisingly, the guidance is incredibly employee friendly.

HR Ideas will continue to monitor the EEOC guidance and keep our clients up-to-date. Should you have any questions, please contact your HR Ideas representative at 925-556-4404.

Doctor Recommendations Are Medical Treatment According to OSHA

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In an April 2016 Interpretation Letter, which was recently made publically available, OSHA responded to a question about medical treatment beyond first aid for recordkeeping purposes. The incident in question involved an employee who experienced wrist pain after working at a computer. Before being seen at the occupational health clinic, the employee bought and used a rigid wrist brace. The doctor said that the brace was not necessary but recommended that the employee continue to wear it if it was relieving the pain. The requester wanted to know whether this constituted medical treatment.

In responding, OSHA stated that the recordkeeping criteria is met if the treatment is “directed or recommended by the employer or a health care professional.” In this particular situation, because the doctor recommended the employee continue wearing the brace if it relieved pain, OSHA determined that this constituted medical treatment beyond first aid. Since OSHA does not generally consider self-treatment or self-medication to amount to medical treatment beyond first aid, had the doctor provided no opinion on the use of the wrist brace the work-related injury would not have been recordable.

Should you have any questions or need any safety assistance and/or training, please contact your HR Ideas Safety Professional at 925-556-4404.

Pressure Cooker Safety

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1. Always follow the manufacturer’s written recommendations including how to properly use the pressure cooker and cleaning methods.
2. Before cooking, check your equipment. Always check the rubber gasket (the ring of rubber that lines the lid of the cooker) to make sure it isn’t dried out or cracked.
3. It is recommended replacing the gasket annually, depending on how often the cooker is used.
4. Check to make sure that there is no dried food on the rim of the pot, which could break the seal.
5. Don’t overfill the cooker. For most foods, don’t fill the pressure cooker more than two-thirds full, to avoid the possibility of food blocking the vents. Foods like beans and grains, which tend to swell as they cook, should only fill about half of the cooker.
6. Use enough liquid. A pressure cooker needs liquid to create the steam that cooks the food. A good recipe will take this into account, but if you’re creating your own, you’ll need at least 1/2 cup of water or other liquid. If the steam doesn’t seem to be building with this amount, open the cooker (releasing any steam first) and add a little more until you reach pressure.
7. Take care when cooking foods that froth. The frothing can block the steam valves and the pressure release vents. Foods that froth include pasta, rhubarb, split peas, oatmeal, applesauce and cranberries. If you do want to cook these foods, follow a trusted recipe and make sure that the quantity in the pot is well below the recommended maximum fill line.
8. Don’t pressure fry. Using more than a tiny amount of oil in your pressure cooker can be very dangerous and could melt the gasket and other parts.
9. Release pressure in a safe way. You can release pressure in three ways:
• By just removing the cooker from the heat and letting it sit until the pressure goes down (natural release),
• Running cold water over the lid of the closed pan (cold water release), or
• Using the pot’s steam release valve to expel the steam (quick release).
10. Make sure to protect your hands with pot holders as you’re handing the cooker, and if you’re using the quick release method, be sure that your face, hands and body are away from the steam vent. When you open the cooker after the steam has been released, hot steam will still escape from the pan, so as you open the pan, tip the lid away from you and hold it over the pan so that the hot condensation doesn’t drip onto you.
11. Clean the cooker properly. Remove the gasket and wash it separately, along with the lid and the pot. Clean the valve with a wooden toothpick, making sure it moves freely and isn’t stuck. Store the cooker with the lid upside down on the pot, rather than locked in place.

If you should have any questions of need any safety training, please contact your HR Ideas Safety Professional.

California Fair Employment & Housing Council Considers Proposed (and Recently Amended) Rules to Restrict Employer Use of Criminal History

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In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (2012 Guidance). The updated guidance does not prohibit employers from using criminal records, but outlines what the EEOC considers recommended best practices, including a recommendation that employers, among other things: (1) remove from employment applications the question that asks job applicants to self-disclose their criminal record; (2) not make an employment decision based solely on the fact of an arrest record; and (3) conduct an “individualized assessment” before rejecting an applicant or terminating an employee because of a conviction.

Since that time, most legislation at the state and local level impacting employer use of criminal records has focused almost exclusively on “banning the box.” Specifically, numerous jurisdictions have implemented statutes and ordinances that require employers to remove the criminal history question from job applications and to wait until a later time, such as after an interview or a conditional offer (depending on the jurisdiction), to present the criminal question to job applicants.1

Earlier this year, however, the California Fair Employment & Housing Council (FEHC) issued proposed regulations that set out numerous ways in which employers can face liability when using a job applicant’s or employee’s criminal history in hiring and in making other employment decisions. In many ways, the proposed regulations borrow heavily from the EEOC’s 2012 Guidance. Specifically, if adopted, the regulations will not outright prohibit a California employer from considering criminal information. Moreover, even though one’s status as an “ex-offender” is not considered a protected characteristic under California law or Title VII, the regulations, if adopted, will allow an applicant or employee to bring a discrimination claim if the employer’s use of conviction records results in an “adverse impact” (referred to by the EEOC as “disparate impact”) on those in protected classes, such as race, national origin and gender.

The high points of the proposed regulations, originally released in March 2016 and recently amended in July 2016, are summarized below. Although this Insight does not delve deeply into related considerations, such as the interplay between the proposed regulations and the Fair Credit Reporting Act (FCRA), employers should continue to be mindful of their obligations under these laws when using criminal background reports provided by third-party consumer reporting agencies.2 In addition, nationwide employers should continue to be mindful of so-called “ban the box” laws and the fair employment laws in some states that extend various protections to ex-offenders as “ex-offenders,” rather than as members of an otherwise protected class.

Proposed Prohibition on Considering Certain Marijuana Convictions

California currently prohibits employers from considering certain types of criminal records, including an arrest or a detention that did not result in a conviction, certain petty marijuana convictions and infractions that are older than two years and convictions that have been sealed, judicially dismissed, expunged or statutorily eradicated by law. The FEHC proposes to expand this list to include any non-felony possession of marijuana conviction that is older than two years.

Proposed Standards for Proving Adverse Impact Discrimination

The regulations propose to prohibit an employer from considering criminal history in employment decisions if doing so would result in an adverse impact on individuals within a protected class. This theory of discrimination may result from the administration of a facially-neutral policy or procedure; specifically, criminal record screening policies that disproportionately affected members of protected classes.

According to the proposed regulations, a job applicant or employee will bear the threshold burden of proving that an employer’s criminal background screening policy has an adverse impact on a protected class. In establishing adverse impact, the applicant or employee can rely on state- or national-level statistics showing substantial disparities in the conviction records of one or more protected characteristics, unless there is a persuasive basis to expect a different result after accounting for any particularized circumstances, such as (1) the geographic area covering the applicant or employee pool, (2) the particular types of convictions being considered, or (3) the specific job at issue. If there is a persuasive basis to expect a different result after accounting for these circumstances, or if an applicant or employee presents evidence beyond statistics in the first instance, the regulations would allow the applicant or employee to establish adverse impact by presenting conviction statistics that address the particularized circumstances and show substantial disparities in the conviction records of one or more protected classes, or offering any other evidence that proves an adverse impact.

Similar to the defense of a disparate impact theory of liability under Title VII, the FEHC’s proposed regulations state that if a job applicant or employee can establish an adverse impact, the burden will shift to the employer to prove that its conviction policy is job-related and consistent with business necessity. In this regard, the employer will be required to show that its policy bears a “demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.”

The employer also will be required to establish that the policy or practice is appropriately tailored to the position at issue, taking into account certain factors, derived from Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975) (the centerpiece of the EEOC’s position for the past 25 years): (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought. On this point, depending on whether the employer has a “bright-line” conviction disqualification rule or conducts an individualized assessment of the conviction, the proposed regulations set out in detail (not fully explained here) the ways in which an employer will be able to prove that a policy or practice of considering conviction history in employment decisions is appropriately tailored to the job at issue. Importantly, the FEHC proposes a rebuttable presumption that a policy is not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense if the employer has a bright-line disqualification policy that includes convictions that are older than seven years (unless subject to an exemption described below).

If an employer can meet its burden of proving that its policy or practice of considering conviction history is job-related and consistent with business necessity, the applicant or employee still may be able to prevail if he or she can demonstrate there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice.

Proposed Notice Requirements

Before an employer may take an adverse action (e.g., declining to hire, discharging, or declining to promote) against an applicant or employee based on conviction history, the regulations propose to require an employer to give the applicant or employee notice of the disqualifying conviction and provide him or her with a reasonable opportunity to present evidence that the conviction information is factually inaccurate. If the employee can demonstrate the record is factually inaccurate, the employer will not be permitted to consider the record. This notice is required regardless of whether the conviction history is derived from a third-party background check report or some other source (e.g., the employer’s independent court records or internet research). This is different from the FCRA, which requires certain notices if the employer takes adverse action against an applicant or employee based, even in part, on information contained in a background check report.

Proposed Exemptions for Certain Regulated Employers

The FEHC recognizes that some employers are subject to federal or state laws or regulations that (1) prohibit individuals with certain criminal records from holding certain positions or (2) mandate a screening process employers are required or permitted to utilize before employing individuals in such positions. The proposed regulations also note that some federal and state laws and regulations make criminal history a determining factor in eligibility for occupational licenses. In these situations, according to the FEHC, compliance with these laws or regulations constitutes a defense to an adverse impact claim under California law.

Proposed Intentional Discrimination

The proposed regulations also address the non-controversial subject of intentional or “disparate treatment” discrimination. Specifically, the FEHC reiterates the long-standing rule that it is unlawful for an employer to treat applicants or employees differently when considering conviction history if such treatment is substantially motivated by a protected characteristic.

Next Steps for Employers

The comment period for the amended version of the proposed regulations expired on July 22, 2016. The FEHC anticipates sending the proposed regulations in final form to the Office of Administrative Law by December 2016. Final approval could come as early as February 2017, with the effective date set in the final version. In the meantime, employers that use or are considering using criminal records to screen applicants or employees should consider the following:

Employers that want to assess potential disparate/adverse impact risks should consider conducting a privileged review of their criminal record-based screening policies and procedures to help identify areas of opportunity in terms of fortifying the policies and procedures as defensible under California law, if the regulations are adopted, and Title VII.
Employers should continue to be mindful of, and comply with, the various laws that impact the use of criminal records in addition to the California Fair Employment and Housing Act and Title VII, including state fair employment laws and the federal and state fair credit reporting laws, such as the FCRA.

Zika-Carrying Mosquitoes Are Here: Tips For Keeping Your Employees Safe

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Last week Florida public health administrators reported the first locally transmitted Zika virus cases in the continental United States. Officials believe that four individuals in a northern Miami neighborhood contracted the virus directly from mosquitoes.

So far, there have been two cases where babies were born with Zika virus.

Prior to this development, the biggest concern for Americans was contracting Zika if they traveled to the Caribbean or South America. Before last week, Americans could generally acquire the virus only if they visited these areas or had sexual relations with a traveler who was bitten by a mosquito while visiting a country in the Southern Hemisphere.

Now Americans should have a different concern. The cases in Florida and elsewhere show us that mosquitoes in the U.S. are carrying the virus. The concern for us here in the United States has now broadened to include the fear of acquiring Zika directly from a mosquito bite.

There is good reason for this concern. While Zika generally exhibits only mild symptoms in healthy adults, it can have devastating consequences, including severe birth defects, for an unborn child if contracted by the mother just before or during pregnancy. There is also no available treatment or vaccine for the virus.

It’s unclear at this point if potential exposure to mosquitoes carrying Zika will trigger regulations of the Occupational Safety and Health Administration (OSHA) or establish a legal duty on behalf of employers. That should not be, however, the present concern of employers. Rather, focus on keeping employees safe now notwithstanding the legal ramifications that may later develop.

Here are some tips for preventing mosquito bites in the workplace:

Educate Your Employees. A great safety program starts with education. If employees understand the risks associated with Zika, they are more likely to comply with work rules regarding their safety. The Center for Disease Control ( provides great resources to assist you with the education process.
Provide Mosquito Repellant. Obviously, employees working outside are at greatest risk of mosquito bites. Purchase mosquito repellant for your employees and ask that they wear it while working outside. Retain a pest control company to spray mosquito repellant on your company’s property. Instruct employees on how to spray repellant on their clothing (e.g., make sure it is sprayed on the outside of clothing, not under it (mosquitoes can bite through thin clothing)), and to use soap and water to remove repellant after work. Encourage employees to not wear strong cologne or perfume when working outside.

Remove All Stagnant Water from Outside Your Facility. If possible, remove all containers that may accumulate water from your work site. Mosquitoes tend to congregate near standing water.

Provide Proper Clothing for Your Employees. Public health officials recommend that light colored, long sleeve shirts and pants be worn when working in areas where mosquitoes are present. If the presence of mosquitoes poses a safety threat to your employees, OSHA may require such clothing under its personal protective equipment (PPE) regulations.

Perform Work Inside. If possible, relocate employees who generally perform work outside to an indoor location.

Adjust Work Schedules to Avoid Dawn and Dusk Hours. Mosquitoes are most active during these times. If possible, adjust the hours of employees working outside accordingly.

Document Your Actions. As with any other safety measure, memorialize the precautions you take in writing. This will prove beneficial when defending any potential future claim relating to safety concerns in the workplace.

Taking these steps can go a long way towards preventing mosquito bites and eliminating the threat of your employees contracting the Zika virus. If you need assistance in preparing a plan to protect employees, contact your counsel or local public health official.

If you work in areas susceptible to mosquitoes, update your Injury & Illness Prevention Program (IIPP) and provide documented training to your employees.

If you should need assistance in these areas or any safety area, please contact your HR Ideas representative at 925-556-4404.

Immigration Penalties Increase Effective August 1, 2016

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The Department of Justice has issued a new rule increasing penalties for I-9 paperwork violations, unlawfully employing unauthorized workers, and unfair immigration-related employment practices. The increase was triggered by the 2015 Bipartisan Budget Act, which revised the formula for adjusting federal agency penalties for inflation. The increase applies to civil penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015. The increases do not apply to violations that occurred on or before November 2, 2015. Additionally, they do not apply to penalties assessed prior to August 1, 2016, even if the violation occurred after November 2, 2015.

The new rule imposes substantial increases in penalties. For example, the penalty for a first offense of employing an unauthorized alien has increased from a range of $375 to $3,200 to a range of $539 to $4,313. The maximum penalty for the unauthorized employment of aliens has increased from $16,000 to $21,563 per alien.

More detailed information about the most significant penalty increases, see

Recreational Marijuana Placed on California November Ballot – Workplace Rights

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On June 28, 2016, California Secretary of State Alex Padilla confirmed that the measure titled “Control, Regulate and Tax Adult Use of Marijuana Act” is eligible for the November 8, 2016 general election ballot. The Secretary of State subsequently designated the measure as Proposition 64.

Proposition 64 purports to leave employers’ workplace rights undisturbed. The proposed act states that its purpose and intent, among other objectives, is to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The proposed act also states that nothing in it shall be construed or interpreted to amend, repeal, affect, restrict or preempt the rights and obligations of public and private employers to maintain a drug and alcohol free workplace.

Further, the act would not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace. The proposed act also states that it would not affect an employers’ ability to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.

The act also makes reference to workplace safety, without providing any solutions. Instead, the act’s authors created a placeholder for future regulation: the new section 147.6 of the labor code would provide for an advisory committee to evaluate the need for industry-specific regulations.

AS new developments come forward, we will keep you informed. If you should have any questions, please contact your HR Ideas representative at 925-556-4404.