It may seem a bit early, but now is a good time for employers to review their programs for preventing heat-related illnesses, a priority for the Occupational Safety and Health Administration for many years.
“When it comes to preventing heat illness, it is important to think ahead,” says attorney Wes Gerrie of the law firm of Goldberg Segalla. “It is common sense that the risk of heat-related illness becomes greater during the late spring and summer months when the weather is hotter and more humid.”
He says an employer heat illness prevention program that will satisfy OSHA should include:
• Training all employees and supervisors on heat illness prevention.
• Providing enough fresh water for each employee and encouraging them to drink.
• Closely observing all employees and
monitoring for signs of illness.
• Allowing new or returning workers to gradually increase workloads and take more frequent breaks as they build a tolerance for working in the heat.
• When possible, creating engineering controls such as air conditioning and ventilation which is not only a preventative measure, but can be used to assist in emergency situations as well
• Developing and implementing written procedures for heat illness prevention, including how to handle medical emergencies and steps to take if someone shows symptoms of heat illness
• Planning for emergencies and training workers on prevention, including any of the above written procedures
• Documenting any and all training, discussions, and emphasis on heat-related prevention, training, and safety
• Overall, OSHA’s message is “Water. Rest. Shade.” – ingrain this slogan in your workers’ minds during pre-work meetings, Gerrie stresses.
OSHA investigates heat-related incidents and complaints to their fullest, he warns. “As such, it is important to review your company’s heat-related safety and hazard prevention and heat identification to ensure it complies with OSHA, especially early in the season.”
Quickly Review Your FLSA Status
Recent events have brought the Fair Labor Standards Act back into the headlines, and those stories should serve as a fresh reminder to employers of their obligation to comply with federal minimum wage and overtime pay regulations.
Enforcement is handled by the Wage and Hour Division of the U.S. Department of Labor. Violations can be expensive. In FY 2018, DOL brought 10,071 minimum wage charges against firms, collecting $32,377,444 in back pay for employees, and 11,018 overtime cases, collecting $194,203,854 due workers.
The maximum civil penalty for repeated and willful violations of the minimum wage and overtime provisions is $2,014 – per employee, meaning employer liability can quickly become substantial.
DOL currently is working towards a revamp of overtime standards it is expected to adopt next year. The maximum salary level where overtime can apply will increase from $455 per week ($23,660 annually) to $679 per week ($35,308 annually).
DOL also recently proposed changes in how employers figure an employee’s regular rate of pay (RROP), which is used to help calculate whether an employee is exempt from overtime regulations, including compensation other than base pay.
Keeping track of the FLSA’s rules and regulation changes is notoriously hard, admits the attorney Martin Luff of the law firm of Vinson & Elkins.
As a result, his firm has developed a high-level, 30- minute desk audit to identify some of the most common blind spots that might need further review. The Vinson & Elkins checklist covers:
Non-employed workforce. Does your business engage significant numbers of individuals as consultants or contractors? Has a legal analysis been done to confirm that they have been appropriately classified as non-employees?
Exempt classifications. When is the last time your organization looked at the different positions it treats as exempt and verified which exemptions apply and the factual bases on which it is relying for those exemptions? Do you have up-to-date job descriptions for the exempt positions?
If this hasn’t been done recently, look at the exempt positions, focusing particularly on those that might be close calls – such as administrative exemptions relying on the employee having discretion and independent judgment on matters of significance.
Also ensure your payroll department only makes permissible deductions (e.g., for personal absences of a day or more) from exempt employees’ pay.
Time recording. When did you last look at how non-exempt employees record their time? Are rules for clocking-in and clocking-out being followed? Have you Has reviewed your policy regarding when employees should clock in and out for meal and rest breaks and confirmed that it complies with FLSA?
Also, take a look at how many overtime hours are being worked by your employees – if it’s a significant number, then the potential liability for non-compliance is higher, Luff points out.
Regular rate of pay calculations. In addition to their hourly wages, do you pay your non-exempt employees anything else, such as bonuses, commission or allowances? In most cases that should be included in the RROP calculations.
State laws. Even if you feel comfortable that your business complies with the FLSA, have you stopped to think about any potential differences under state law?
“If you read through the points above and feel like you are in good shape, then that’s great news. But stay vigilant and keep checking these points regularly,” Luff advises. “But if you read through these points and think your business might have blind spots, it’s time to follow up.”
