Workplace Strategies Watercooler 2023: Ogletree Deakins’ Annual Benchmarking Survey—Headlines and Trends

This podcast, which was recorded at Ogletree Deakins’ national Workplace Strategies seminar, features a review of the firm’s third annual benchmarking report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, which gathered feedback from nearly 1,100 in-house counsel and senior HR professionals. Our speakers, Bud Bobber, chair of the firm’s Manufacturing Practice Group, is joined by Chief Client Services Officer Jim McGrew, and Jenn Betts, who is co-chair of the firm’s Technology Practice Group, highlighted key findings and takeaways from the report, including the top labor and employment challenges for employers. The speakers also noted trends surrounding those challenges, which include hiring and retention, multistate compliance, pay transparency, AI in the workplace, and more.

Workplace Strategies Watercooler 2023: All Things ADA, LOA, FMLA, and Reasonable Accommodations

This episode of Workplace Strategies Watercooler, which was recorded at Ogletree Deakins’ national Workplace Strategies seminar, features a discussion of reasonable accommodations issues emerging from the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), state paid leave laws, and mini-FMLA laws. Our speakers, Shareholder Charles L. Thompson, IV, who is a co-chair of the Ogletree Deakins Leaves of Absence/Reasonable Accommodations group, was joined by Shareholder Stacy M. Bunck (Kansas City) and Shareholder John G. Stretton (Stamford). The podcast addresses the many facets of employers’ accommodations obligations, including timeframes for action, the interactive process, documentation requirements, intermittent claims, and return-to-work issues.

Workplace Strategies Watercooler 2023: Multistate Monday—Updating Your Multistate Handbooks and Employment Agreements

This episode of Multistate Monday, which was recorded at Ogletree Deakins’ national Workplace Strategies seminar, features a discussion of how multistate employers can craft, revise, and implement handbooks in the face of emerging federal, state, and local developments. Our attorneys, Shareholder Dee Anna Hays, chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, Shareholder Lucas Asper, Shareholder Christine Bestor Townsend, cochair of the firm’s Unfair Competition and Trade Secrets Practice Group, were joined by a guest speaker who is a senior human resources professional for a growing multistate employer. The panelists address key considerations in structuring multistate employment handbooks, the uptick in state limitations on restrictive covenants, and best practices related to the timing and consideration for such agreements.

Job Hazard Analysis: Pre-Test Planning, Communication, and Documentation

In this podcast, Frank Davis (Shareholder, Dallas) and John Surma (Shareholder, Houston) discuss job hazard analysis and pre-test planning. Frank and John—both members of Ogletree’s Workplace Safety and Health Practice Group—address how and when to conduct an analysis, who to involve in the process, the importance of communication, and methods of documentation. They offer insights and best practices for identifying hazards so that they can be eliminated or reduced to an acceptable risk level.

Texas’s SB 240: State Legislature Passes Workplace Violence Prevention Act

In this podcast, John Surma and Frank Davis are joined by Ryan Swink to discuss Texas’s Senate Bill (SB) 240—which imposes workplace violence requirements on covered healthcare facilities. Specifically, SB 240, which is also known as the Workplace Violence Prevention Act, requires health care facilities to adopt, implement, and enforce written workplace violence prevention programs and written prevention plans. The law also requires covered health care facilities to create workplace violence prevention committees and authorizes existing facility committees to develop a workplace violence prevention plan. The speakers also discuss how the new law interplays with Texas’s law on the open carry of firearms.

Rapid Response Investigations Are on the Rise: Best Practices for Employer Responses

In this podcast, John Surma and Frank Davis (both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group) discuss Rapid Response Investigations (RRIs), a tool that the Occupational Safety and Health Administration (OSHA) is using with increasing frequency. Frank and John review best practices for employer responses to RRI letters, including the importance of timeliness; the utility of including a robust description of the employer’s business or industry and safety program; and a discussion on which employees to include on the employer’s investigation team.

OSHA’s Programmed Inspections and What Triggers an Unprogrammed Inspection

In this podcast, John Surma and Frank Davis, members of Ogletree Deakins’ Workplace Safety and Health Practice Group, discuss unprogrammed inspections conducted by the Occupational Safety and Health Administration (OSHA). Frank and John provide an overview of the four triggers of such inspections: imminent danger; fatalities and catastrophes; complaints by employees, unions, or third parties; and referrals by other agencies. They also offer practical takeaways for employers that may be subject to an unprogrammed inspection.

Multistate Monday: PUMP It Up—New Protections for Pregnancy and Nursing Mothers

This episode of Multistate Monday offers an informative overview of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA). Dee Anna Hays, chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, and Susan Gorey are joined by Christine Bestor Townsend, who fields a host of questions about employer obligations under the PUMP Act and the PWFA. Christine offers practical takeaways regarding interaction with other federal laws, including the Americans with Disabilities Act, as well as state and local lactation laws. She also reviews coverage, enforcement and remedies, and pointers for developing well-defined and compliant policies for both acts.

OSHA Citations: Responses, Timelines, Deadlines, and Best Practices

In this podcast, John Surma and Frank Davis, members of Ogletree Deakins’ Workplace Safety and Health Practice Group, discuss the various types of citations that are issued by the Occupational Safety and Health Administration (OSHA). In particular, Frank and John discuss what employers are required to do once they receive a citation, possible options on responding to citations, and employers’ response and abatement deadlines. John and Frank also discuss how employers can challenge a citation, how and when employers may decide to file a notice of contest, and whether to schedule an informal conference with OSHA.

Rapid Fire: The Top 5 Business Immigration Topics in 2023

It has been an eventful year for U.S. Citizenship and Immigration Services (USCIS). In this podcast, Awanti Damle and Kara Lancaster, members of Ogletree Deakins’ Immigration Practice Group, provide a rapid-fire and informative summary of the top five immigration topics for employers. Awanti and Kara discuss proposed increases in filing fees for certain visa petitions, including H-1B and L-1 petitions, and the phased expansion of premium processing for some nonimmigrant and immigrant visa types. They also provide insight on pay transparency laws applicable for employers recruiting foreign nationals, the waiver of an in-person interview in the visa stamping process for some types of applications, and whether there will be an additional selection round in the annual H-1B lottery.

OSHA’s New Authority to Issue Certifications Supporting U and T Crime Victim Visas

The U.S. labor secretary and assistant secretary of labor for occupational safety and health recently signed a memorandum giving the Occupational Safety and Health Administration (OSHA) authority to issue certifications supporting applications for U and T nonimmigrant status visas (which are related to certain crimes and forms of human trafficking). In this podcast, John Surma is joined by Leigh Ganchan, who is a member of Ogletree Deakins’ Immigration Practice Group, to discuss what these visas are, how they have traditionally been used, wait times for these visas to be granted, and the status of applicants while these visa cases are processed. John and Leigh also discuss how the new memorandum could come into play in many OSHA inspections because one of the qualifying activities is “obstruction of justice,” which OSHA may claim if an employer fails to cooperate with a compliance officer.

Responding to OSHA’s Hazard Alert Letters: Inspections, Industry Standards, and Abatement

In this podcast, John Surma and Frank Davis, members of Ogletree’s Workplace Safety and Health Practice Group, discuss hazard alert letters (HAL) issued by the Occupational Safety and Health Administration (OSHA). John and Frank review circumstances under which a HAL might be issued, including deviation from industry standards, and what employers may want to consider when responding to a HAL. The podcast concludes with a review of abatement verification inspections and interim abatements.

Multistate Monday: Marijuana Compliance—Don’t Blow It

In this podcast, Susan Gorey and Dee Anna Hays, who is chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, are joined by Tae Phillips, who is a co-chair of the firm’s Drug Testing Practice Group. Tae reviews the many issues facing employers as the number of states legalizing the use of medical and recreational marijuana grows. He provides best practices for managing the complex framework of state marijuana laws and discusses issues surrounding job protections for marijuana users, reasonable suspicion drug testing, and what employers can expect in the future.

Workplace Violence in Healthcare: Addressing Risk Factors and Abating Hazards

In this podcast, members of Ogletree Deakins’ Workplace Safety and Health Practice Group discuss workplace violence, with a focus on healthcare settings. John Surma, Wayne Pinkstone, and Phillip Jones review the duty to provide a hazard-free workplace and guidance provided by the Occupational Safety and Health Administration (OSHA). They also address how workplace violence incidents may lead to a violation of the Occupational Safety and Health Act’s General Duty Clause. Karen Tynan, chair of Ogletree’s West Coast OSHA practice, joins the conversation to discuss Cal/OSHA’s approach to the threat of workplace violence, the need to address environmental risk factors, and abatement of a hazardous condition after an incident.

OSHA Inspections: Employer Rights, Responsibilities, and Best Practices

In this podcast, Workplace Safety and Health shareholders John Surma and Frank Davis continue their discussion of inspections conducted by the Occupational Safety and Health Administration (OSHA). John and Frank review employer rights and responsibilities with respect to conducting employee interviews, preserving the scene of an incident, producing injury and illness records, and more.

OSHA Inspections: Opening Conference and Scope of Inspection

In this podcast, John Surma and Frank Davis, members of Ogletree Deakins’ Workplace Safety and Health Practice Group, review the basis for and scope of inspections by the Occupational Safety and Health Administration (OSHA). John and Frank discuss circumstances that may trigger an inspection, what to expect at an opening conference, and an employer’s right to limit the inspection.

NLRB GC’s McLaren Macomb Memo: The Uncertain Future of Nondisparagement and Confidentiality Provisions

In this podcast, Tom Davis and Tom Stanek, co-chairs of Ogletree Deakins’ Traditional Labor Relations Practice Group, provide an update on the National Labor Relations Board’s (NLRB) February 2023, decision that nondisparagement and confidentiality provisions in severance agreements are unlawful. This episode of Third Thursdays does a deep dive into the March 22, 2023, NLRB general counsel (GC) memorandum clarifying the McLaren Macomb ruling. In addition to providing an update on the GC’s latest guidance, Davis and Stanek also provide clarification on previously unsettled issues and factors to keep in mind when drafting severance, settlement, and other employment agreements.

Multistate Monday: Multistate Compliance Is No Joke—Marijuana, Leave, Wage and Hour Laws, and More

Just in time for April Fools’ Day, we are pleased to announce the inaugural episode of our newest podcast series, Multistate Monday. In this episode, Dee Anna Hays, who is chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, is joined by Susan Gorey to discuss the responses to the firm’s recent benchmarking survey. Susan and Dee Anna discuss the most challenging multijurisdictional issues that employers are facing, including leaves of absence, wage and hour laws, handbooks and policies, background checks, and marijuana laws. They discuss how employers can keep up-to-date and in compliance with the patchwork of state laws in these areas—especially given the growing trend of remote workforces that started during the pandemic.

OSHA Inspections, Whistleblower Complaints, and Rapid Response Investigations: Considerations for Employers

In this podcast, John Surma and Frank Davis (both of whom are members of Ogletree Deakins’ Workplace Safety and Health Practice Group) discuss the keys to being successful in terms of managing an Occupational Safety and Health Administration (OSHA) inspection. Frank and John discuss the importance of having a workplace safety plan, training employees on details of the plan, being prepared, and maintaining relationships with safety professionals.They also discuss whistleblower complaints, rapid response investigations (RRI), and considerations for employers submitting RRI responses.

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—Kathy, 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 Relations 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.