It may surprise you to learn that there are circumstances where Occupational Safety and Health Administration will pay your attorney’s fees – but only in cases where the employer is found to be in the right and OSHA in the wrong.
In a situation where your company would like to contest a citation that you believe was not justified, and you are not sure if you can afford to pay an attorney to fight it, there may be relief, according to lawyers Nicholas Hulse and Travis Vance of the law firm of Fisher Phillips.
The Equal Access to Justice Act may offer an avenue for getting the government to foot the bill after an employer challenges an OSHA citation.
The EAJA allows for the award of attorney’s fees and other expenses to eligible parties in certain administrative proceedings, including those before the Occupational Safety and Health Review Commission, which hears OSHA inspection cases that are challenged by employers.
An eligible party also can receive a financial award when it prevails over the U.S. Secretary of Labor, who prosecutes OSHA citations, unless the secretary’s position in the proceeding was justified or special circumstances make an award unjust.
However, keep in mind that OSHRC’s rules specifically limit who is eligible for an award of attorney’s fees and other expenses under the EAJA.
First, the applicant must be a party with somewhat limited resources. To be eligible for an award, the employer must be a partnership, corporation, association, unit of local government or public or private organization that has a net worth of not more than $7 million and employs not more than 500 employees.
“If OSHA issues your company a citation without substantial justification, consider the EAJA when deciding whether to contest the citation,” Hulse and Vance advise. “The government may be left footing the bill if they were not substantially justified in issuing a citation to your company.”
<h3>CA & NY Enact Race Hair Laws</h3>
Bans on racial discrimination based on hair styles were recently enacted in California and New York State, and it is probably only a matter of time before other states follow their example.
The California law is called the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act. It expands the legal definition of race to include “traits historically associated with race,” such as hair texture and hairstyles including braids, dreadlocks and twists.
Laws and societal norms have equated “blackness” and related physical traits, such as kinky or curly hair, with inferiority and subject black people to unequal treatment, according to the legislators.
The notion of professionalism closely relates to “European features and mannerisms,” the California legislation states. As a result, people “who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”
New York State’s new law uses the exact same language as California’s law, and follows on the heels of a similar statute enacted in New York City. New Jersey is considering similar legislation after controversy over a high school wrestler forced to cut his dreadlocks during a championship match.
Jasmine Anderson, an attorney with the law firm of Constangy Brooks Smith & Prophete, recommends that employers coming under the new laws review and revise current dress code or grooming policies to ensure compliance.
Employers also should eliminate language that prohibits hairstyles associated with race, or that suggests only certain hairstyles are permitted in the workplace, she says. “Training employees on the new law, including managers and those employees responsible for making hiring decisions, is critical.”
Are white women with dreadlocks covered?
<h3>FMCSA Studies Bias in Trucking</h3>
The Federal Motor Carrier Safety Administration is initiating a formal research study and seeks comment from the public about crimes against women and minority truckers to learn more about the seriousness of the issue. Currently, there is insufficient data about the frequency and number of harassment- and assault-related crimes, the agency says.
FMCSA wants to explore and validate the problem of harassment- and assault-related crimes, especially against female and minority male trucker drivers because there seems to be a perception among these groups of truckers that they are more vulnerable.
Another reason for conducting this study, the agency said, is that by helping these truckers protect themselves from these kinds of crimes, this could draw more truckers from these subpopulations and reduce turnover, which could help alleviate the worsening truck driver shortage.
FMCSA also says part of the research will consist of conducting an anonymous survey of truck drivers to gather additional information about the issue. A maximum of 440 males and 440 females will be selected to participate in an online survey and in- person interviews.
A $25 incentive will be given to eligible respondents to the in-person interview or the online survey. Eligible drivers must report that they are a female or a minority male who has driven a truck professionally in the past two years.
FMCSA has contracted with the private research firm Battelle to conduct the study.
FMCSA will accept comments through September 23, 2019. Commenters may use the federal eRulemaking portal at regulations.gov, under Docket No. FMCSA-2018-0278.
<h3>No Need to Pay Sleeping Drivers</h3>
Trucking employers don’t have to pay truck drivers for the time they spend when sleeping in tractor- trailer sleeper berths.
A July 23 opinion letter issued by the U.S. Department of Labor’s Wage and Hour Division holds that any time an employee is in a sleeper berth not working and not engaged to wait, while free to pursue personal activities without responsibility for work, this should be treated as non-working time and does not need to be compensated.
This presumption ― that non-working time in which the employee is relieved of all duties is not compensable ― also holds true regardless of whether the truck is moving or stationary.
The DOL letter should prove to be especially helpful because of conflicting court decisions on the issue. Some held that off-duty time may be limited to eight hours a day when a driver is on a trip and spending off-duty time in the sleeper compartment.
