Oregon’s Senate Bill 592: Workplace Safety Penalty, Inspection, and ‘Look Back’ Period Changes?

In this podcast, John Surma, Kathy Fletcher, and Karen Tynan discuss Oregon’s Senate Bill (SB) 592, which would significantly increase the amounts of civil penalties for violations of the Oregon Safe Employment Act. The speakers also cover SB 592’s provisions that would allow Oregon Occupational Safety and Health to conduct in-depth, wall-to-wall inspections under certain circumstances. Karen Tynan—who is chair of Ogletree’s West Coast OSHA practice—Kathryn, and John also review the unlimited “look back” period for repeat violations included in SB 592 and highlight Ogletree’s OSHA Tracker, a useful tool in monitoring OSHA activity throughout the nation.

R-Case Procedures: Where Things Stand After Recent Judicial Activity and NLRB Response

In this podcast, Tom Davis, co-chair of Ogletree Deakins’ Traditional Labor Practice Group, provides an update on the current National Labor Relations Board’s (NLRB) Representation-Case (R-Case) Procedures, which have gone through substantial changes involving NLRB rulemaking in 2014 and 2019. Tom reviews the recent Court of Appeals decision resolving challenges to the 2019 modifications and how the NLRB intends to respond to that decision.  He then reviews which proposed changes are and which ones are not in effect today: for example, when the list of eligible voters is due, when the certification of election results may occur, who can be an election observer certified by a union, the number of days permitted for various steps in the process, and whether ballots are impounded or counted when an election is appealed.

Guns in the Workplace: The ‘Parking Lot Exception’ and More

State laws addressing the right to carry firearms have been evolving and some states, including Texas, have expanded the rights of individuals to carry guns in public places. In this podcast, Frank Davis, John Surma, and Andy Turner discuss the interplay between such laws and the rights of employers to limit employees’ possession of guns on work premises. This podcast includes an in-depth review of the “parking lot exception” and an update on recent changes to Texas state law.

OSHA’s ‘Wall-to-Wall’ Site-Specific Targeting Program Ramps Up

In this podcast, Frank Davis, John Surma, and David Walston, members of Ogletree’s Workplace Safety and Health Practice Group, discuss the Occupational Safety and Health Administration’s (OSHA) Site-Specific Targeting (SST) program whereby the agency randomly selects employers for “wall-to-wall, floor to ceiling” inspections without identifying an accident or hazard. The speakers review data indicating that OSHA inspections, citations, and penalties are on the rise, and offer insights into the reasons for the increase, particularly in Texas, Louisiana, Arkansas, Oklahoma, and Alabama.

Dirty Steel-Toe Boots, Episode 16: Investigations and the OSH Act’s Whistleblower Provision

In this episode of Dirty Steel-Toe Boots, Phillip Russell is joined by Tom Chibnall, to discuss the Occupational Safety and Health Administration’s (OSHA) recent activity on the regulatory front, namely the new guidance on the whistleblower complaint intake pilot program. Phillip and Tom (both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group) discuss the potential impact of the program, including the likelihood that it will alleviate the backlog of whistleblower complaints (such as Occupational Safety and Health (OSH) Act 11(c) complaints), screen out flawed allegations, and lead to shorter investigatory timetables. Phillip and Tom also review the elements of viable 11 (c) complaints: protected activity, an adverse employment action, and a “but for” causal connection between the two.

Criminal Referrals and OSHA Violations, Part III: Industry Standards, Multiemployer Workplaces, and Best Practices

In the final installment of this three-part podcast series, Frank Davis and John Surma wrap up their discussion of the criminal implications associated with some violations of the Occupational Safety and Health (OSH) Act, with a focus on the fatal shooting on the set of the movie “Rust.” Frank and John, members of Ogletree’s Workplace Safety and Health Practice Group, review how deviation from industry standards and from the “reasonable person” standard may result in an OSH Act violation and, possibly, criminal charges. They also highlight best practices for employers that become aware of workplace hazards and outline when and how the Occupational Safety and Health Administration’s Multiemployer Citation Policy may apply.

Criminal Referrals and OSHA Violations, Part II: From Movie Sets to Fatalities in Other Industries

Part two of Frank Davis and John Surma’s three-part podcast series continues the discussion on the workplace safety issues related to the criminal proceedings emerging from the tragic incident on the set of the movie “Rust.” Frank and John, both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group, consider criminal charges that may be brought in other industries, such as construction, and the Occupational Safety and Health Administration (OSHA) investigations when workplace injuries are related to an emphasis program subject. Our speakers also consider how federal OSHA states and state-plan states differ on criminal prosecutions—whether it be a state attorney general or the federal department of justice.

In The Breakroom With Bill, Episode 7: Intermittent FMLA Leave in Perpetuity? Latest DOL Opinion Letter Sheds Light on Accommodations

In this podcast, host Bill Grob is joined by Chris Cascino to discuss the U.S. Department of Labor’s (DOL) new opinion letter on how the Family and Medical Leave Act (FMLA) applies in employee scheduling. Our speakers discuss the background of the opinion letter, the intricacies of offering intermittent leave for an indefinite period of time, and the DOL’s stance that employees may limit their work schedules on an intermittent leave basis in perpetuity. Bill and Chris also discuss the methods available to employers in terms of scheduling, the intersection of the Americans with Disabilities Act with the FMLA, and undue hardship exemptions under the ADA.

Technology and the Workplace: What Employers Need to Know About NLRB General Counsel Memo 23-02

In this podcast, Tom Davis, co-chair of Ogletree Deakins’ Traditional Labor Relations Practice Group, sits down with Jenn Betts, co-chair of the firm’s Technology Practice Group, to discuss the National Labor Relations Board’s (NLRB) General Counsel (GC) Memorandum 23-02 on technology in the workplace. While technology can increase efficiencies, ensure security, increase productivity, and promote decision-making fairness, our speakers consider the concerns articulated by the General Counsel about how these tools can impact Section 7 activity. Jenn and Tom do a deep dive into the implications of memo 23-02 and how employers may need to adjust their use of technology if the GC’s perspectives are adopted by the NLRB.

Dirty Steel-Toe Boots, Episode 15: OSHA’s Expansion of the Instance-by-Instance Policy

In this episode of Dirty Steel-Toe Boots, Phillip Russell is joined by John Surma, to discuss OSHA’s January 26, 2023, press release announcing the agency’s new instance-by-instance citation policy along with two related enforcement memoranda regarding the factors for determining whether instance-by-instance citations should be issued and penalty adjustments. Phillip and John (both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group) discuss the implications of this move away from OSHA’s previous policy whereby the agency had the discretion to group similar citations or exposures—including significantly increased penalties multiplied by the number of instances cited. Our speakers also cover how often the agency will use this new practice and how these changes will affect the number of cases that will be contested due to the increased overall penalty exposure.

Criminal Referrals and OSHA Violations, Part I: When Movie Sets Are Under OSHA’s Spotlight

In this podcast series, Frank Davis and John Surma, members of Ogletree’s Workplace Safety and Health Practice Group, discuss the circumstances under which criminal prosecution may result from a violation of the Occupational Health and Safety (OSH) Act by doing a deep dive into the fatal shooting on the set of the movie “Rust.” Frank and John review what is required for a finding of a “willful” violation of the OSH Act’s General Duty Clause. They also focus on activity in the Occupational Safety and Health Administration’s Region 6, and the investigation of the “Rust” shooting by the New Mexico Occupational Health & Safety Bureau.

Dirty Steel-Toe Boots, Episode 14: Nonmanagement Access During an OSHA Inspection

The Occupational Safety and Health Administration (OSHA) recently proposed a rule that would revive a policy allowing nonemployee representatives of labor unions and worker advocacy groups to take part in OSHA inspections. In this podcast, Frank Davis and Phillip Russell, members of Ogletree Deakins’ Workplace Safety and Health Practice Group, review the current law and how the proposed rule, if adopted, may transform and expand OSHA inspections.

Labor Relations and Organizing: What to Watch for in 2023

In this podcast, Tom Davis, co-chair of Ogletree Deakins’ Traditional Labor Relations Practice Group, reviews recent developments in labor relations and organizing and offers helpful insights on hot topics for 2023. Tom discusses some of the reasons for the increased level and visibility of organizing and whether this trend will continue. The episode also provides an update on National Labor Relations Board (NLRB) activity and how the present political climate may influence developments. The presentation concludes with a preview of traditional labor topics to come in 2023, including handbook policies, joint-employer issues, expansion of the concept of protected concerted activity, and artificial intelligence (AI) in the workplace.

Dirty Steel-Toe Boots, Episode 13: Kicking Off 2023 With an OSHA and Workplace Safety Forecast

In this podcast, Phillip Russell, a member of Ogletree’s Workplace Safety and Health Practice Group, continues the popular Dirty Steel-Toe Boots series with a look ahead at 2023 and what to expect from the Occupational Safety and Health Administration (OSHA). Phillip reviews the reasons OSHA may be more active in 2023 and offers tips on how employers can prepare. The discussion includes insights into regulatory acceleration, political urgency, and economic forces that may shape OSHA policy and practice.

The H-1B Cap Process: How Employers Can Prepare Now

In this podcast, Andrew Drozdowski and Kara Goray, members of Ogletree Deakins’ Immigration Practice Group, provide an overview of the H-1B cap or quota process. The H-1B visa program permits U.S. companies to employ professional foreign national workers in specialty occupations who have not previously held H-1B work visas. The speakers explain how the online registration process works and what employers can do now to prepare. Kara and Andrew also highlight considerations to keep in mind when selecting candidates, including education level, work location, and prevailing wage issues.

Foreign National Workers and RIFs: Do Layoffs Affect the Status of Foreign Talent?

In this podcast, Katie Desmond and Katherine MacIlwaine, members of Ogletree Deakins’ Immigration Practice Group, review the challenges that employers and employees face when a reduction in force (RIF) or layoff affects the employment of foreign nationals. The speakers review the varying considerations to keep in mind for workers with non-immigrant work visas, those who are in the green card process, and students with F-1 status. Katherine and Katie also provide information regarding grace periods, review the options that may be available for those in the green card process, and discuss other key topics regarding workforce reductions.

OFCCP Posting Requirements: Compliance Reminders for Federal Contractors

In this podcast, Lauren Hicks and Chris Near give an overview of the regulatory poster requirements imposed by the Office of Federal Contract Compliance Programs (OFCCP) on federal contractors. The speakers review noteworthy posters, how OFCCP will ensure they are posted during audits, digital accessibility, and best practices for regulatory compliance. Specifically, the speakers address the Equal Employment Opportunity Commission’s (EEOC) new “Know Your Rights” poster that replaced the prior “EEO is the Law” poster and supplement. The presentation covers additional compliance obligations including the pay transparency nondiscrimination poster, as well as wage and hour posting requirements imposed under the Fair Labor Standards Act (FLSA) that are applicable to federal contractors, the “Notification of Employee Rights Under Federal Labor Laws” poster, and the Uniformed Services Employment and Reemployment Rights Act (USERRA) poster. The speakers also provide best practices to successfully navigating poster compliance in an OFCCP compliance review.

Child Status Protection Act: Insights and Helpful Hypos

In this podcast, Dan Maranci and Christina Kelley discuss the Child Status Protection Act (CSPA) and how its provisions may benefit dependents who turn 21 before their green card applications have been approved. The speakers review guidance on determining an applicant’s age at the time of visa availability and present several hypotheticals to demonstrate how to calculate adjusted CSPA ages. Join this podcast for important insights into this key piece of legislation and for step-by-step examples of how it applies in real-world scenarios.

French Podcast Series—The Employment of Ukrainian Workers in France

In this French-language podcast, Pascale Ernst and Marie Paulin from Ogletree Deakins’ Paris office answer questions regarding how to recruit Ukrainian refugees in France. Marie and Pascale discuss under which legal framework companies may employ Ukrainian refugees and what type of employment contract French law requires employer to use in these circumstances.

The Supreme Court’s 2022 Affirmative Action Cases and Their Impact on Employers

In this podcast, we discuss the cases before the Supreme Court of the United States, involving affirmative action or race-conscious admissions in higher education. Lauren Hicks of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group and Jim Plunkett, Washington, D.C. shareholder and author of our weekly Beltway Buzz newsletter, summarize the recent oral arguments and the implications the decisions might have on employers. Lauren and Jim discuss the federal contractor affirmative action obligations under Executive Order 11246 and how those obligations contrast with affirmative action in the educational context. The podcast concludes with discussion of how the decisions in the college admissions cases might impact employment practices in diversity and inclusion or federal contractor OFCCP compliance.

Insights for Hiring and Employing Veterans: An Interview With Thought Leader, Sean Kelley

In this episode, Bud Bobber, who is a shareholder in Ogletree Deakins’ Milwaukee office and chair of the firm’s Manufacturing Industry Group, speaks to Sean Kelley, who is a nationally recognized thought leader in corporate military affairs, recruiting, and transition programs. Bud and Sean discuss the rationale for implementing an intentional strategy for recruiting, hiring, and employing veterans. The speakers also explain how veterans, as a diverse group, can be an important part of any company’s diversity, equity, and inclusion (DE&I) plan and how biases, conscious or otherwise, have often created impediments to having veterans in the workforce. This podcast also offers suggestions—in conjunction with our recent article, “Employing Veterans: Insights for Hiring Veterans and Supporting Veterans in the Workforce ”— for employers to tap into this rich stream of new talent continually flowing into the workforce as service persons transition to civilian life.

Dirty Steel-Toe Boots, Episode 12: Women in Construction and Safety

In this episode of Dirty Steel-Toe Boots, host Phillip Russell interviews Mandy Kustra, the safety director of Ajax Paving. Mandy is a leader in advocating for women in the construction industry and in safety careers. She explains how she got into construction and safety and how mentoring, advocacy, and building a network of support has helped other women do the same. Mandy also discusses personal protective equipment (PPE) fit in the construction industry, OSHA’s forthcoming standard clarification, and the importance of internal traffic control plans (ITCPs) in the transportation construction industry.

The Marijuana Conundrum in the Workplace: Balancing Staffing, Compliance, and Safety Concerns

As a growing number of state and local governments have passed laws legalizing marijuana use, employers have been faced with the need to balance competing needs and interests, including: recruitment and retention; compliance requirements, such as disability and medical marijuana accommodations; and the need to maintain a safe workplace. In this podcast, Mike Clarkson, co-chair of Ogletree Deakins’ Drug Testing Practice Group, offers valuable insights and tips for navigating the complex and evolving issues regarding marijuana in the workplace.


Global Recruiting: Understanding the Implications of a Contingent Workforce

In this podcast, Diana Nehro and Patty Shapiro discuss best practices for employers hiring global employees through third-party providers such as an employer of record (EOR), a professional employer organization, and a staffing firm. The speakers cover topics, including contracting with such vendors, the importance of understanding local labor laws, and strategies to address equity compensation. Stay tuned for the next installment of this series where Diana and Patty address the audience’s most common questions in this growing area of interest for employers with a global workforce.

OFCCP’s Renewed Focus on Construction Contractors

In this podcast, Scott Kelly, Morgan Epperson, and Chris Near of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group discuss the increased attention the Office of Federal Contract Compliance Programs (OFCCP) has on the construction industry. After several years when OFCCP admittedly did not engage in significant construction enforcement work, prioritizing compliance audits of construction contractors has emerged as a top area of focus. The speakers discuss this change and share their insights on the compliance obligations where the agency has placed particular emphasis during their audits.

OFCCP’s Revised Compensation Directive

In this podcast, Lauren Hicks, Leigh Nason, and Scott Kelly discuss Directive 2022-01, which the Office of Federal Contract Compliance Programs (OFCCP) revised and renamed on August 18, 2022. The speakers cover how the new directive, which amends the agency’s guidance suggesting that federal contractors must perform annual pay equity audits to comply with affirmative action programming (AAP) regulatory requirements, walks back language regarding the documentation required to demonstrate compliance with compensation analysis obligations. The speakers also discuss how the revised guidance imposes new burdens for contractors and offer insights into the reasons fueling the agency’s changes regarding conducting compensation analyses and evaluations.

I-9 Changes, Updates, and Proposed Rulemaking From DHS

In this podcast, Joey Fong and Ceri Koski discuss the various changes that the U.S. Department of Homeland Security (DHS) has implemented since the pandemic, proposed rulemaking regarding the alternative verification options, and proposed I-9 form changes. The speakers discuss steps employers can take in anticipation of the October 31 expiration date of the temporary rule that had allowed employers to use remote or virtual verification of employment eligibility documents. They also cover the details on DHS’s proposed rule (which may still include a remote or virtual option), whether DHS will impose document retention requirements, and how alternative options might impact fraudulent document detection. Ceri and Joey also discuss the merits of the possible impending revisions to the I-9 form.

Dirty Steel-Toe Boots, Episode 11: Death by Suicide in the Construction Industry

In this episode of Dirty Steel-Toe Boots, host Phillip Russell has a raw and real conversation with the president of Ajax Paving Industries, Inc., Vince Hafeli, regarding his own personal experience as a suicide survivor and his mission to help others see death by suicide as an urgent workplace safety and health issue. Vince dispels the myths about death by suicide and discusses how Ajax’s ownership and executive team have opened the discussion at all levels of the company to encourage those in crisis to get help and to educate all employees on how to spot warning signs. Phillip and Vince discuss how all employers, especially those in the construction industry, can increase their own awareness and take action in addition to relaying practical tips and resources.

Dirty Steel-Toe Boots, Episode 10: Corporate Counsel’s Role Managing OSHA Compliance

In this episode of Dirty Steel-Toe Boots, host Phillip Russell has an enlightening conversation with Lori Baggett an in-house corporate counsel with responsibility for legal issues related to workplace safety and health and Occupational Safety and Health Administration (OSHA). Lori discusses how her experience as a former outside counsel helps her add value to her role as vice president and assistant general counsel. She  offers practical tips for in-house counsel who are responsible for OSHA matters, including for those who have limited experience in this area. Lori also shares some tips for in-house safety professionals on how to best work with their legal departments to improve safety and manage liability. Phillip and Lori have a candid and insightful discussion about diversity, equity, and inclusion in the legal profession.

OFCCP Facing FOIA Request for EEO-1 Reports: What The Disclosure of Type 2 Consolidated Reports Could Mean for Contractors

In this podcast, Scott Kelly and Lauren Hicks of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group discuss the Freedom of Information Act (FOIA) request that the Office of Federal Contract Compliance Programs (OFCCP) received seeking the disclosure of data from EEO-1 reports. The broad request asks for the agency to disclose Type 2 Consolidated information filed by federal contractors between 2016 through 2020. Scott and Lauren cover the scope of the request, published guidance from OFCCP, and considerations when evaluating whether to submit objections to the release of the information by the September 19, 2022, deadline.