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| GEA Spring Conference - Westin Savannah Harbor Resort & Spa |
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| Save the Date - Join us for the GEA Spring Conference on March 31st - April 2nd. More conference information, topics and scheduling will be included in the newsletter in the near future. |
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New Years Resolution Idea - 2019 Poster Review
It is always a good idea to review any changes to the the required work place poster regulations by federal, state and local authorities. One website which will help you in determining any changes or additional federal requirements is the The U.S. Department of Labor "elaws Poster Advisor and Workplace Poster Requirements for Small Business and Other Employers" for the federal posting requirements. The Georgia Department of Labor provides a list of the state poster requirements on the state website. In addition, there are several all-in-one laminated and other options for sale by a variety of organizations such as the SHRM Store or you can download and print posters from the federal and state websites. Always remember to check to see if there are local municipal or county posting requirements. Federal regulations (FLSA, FMLA, Executive Order 11246) require that posters be in conspicuous places in every location where employees are employed to be able to observe readily a copy. For telecommuters, is is not required to post federal and state posters in offices within the home but it is required that employers make sure that employees who telecommute have access to the posters. A couple of options are to make the posters available on-line or send the posters to employees by email or fax and/or make sure employees know where the posters are located if the employee comes to employers location on a regular basis.
Of course there are other important New Years Resolutions like losing weight and exercising which I will achieve by walking to the break room to check the posters and refrain from getting doughnuts out of the vending machine. Oh well, I will try at least.
Buddy McGehee, SHRM-SCP |
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| Mercer University Fast-Tracks a Solution to Georgia's Critical Nursing Shortage
ATLANTA – The nationwide nursing shortage is expected to hit critical levels over the next decade, and Georgia is no exception. That’s why Mercer University is expanding its nursing program to offer qualified students a new, one-year accelerated path to nursing.
Mercer’s Georgia Baptist College of Nursing is launching an Accelerated Bachelor of Science in Nursing (ABSN) program in Atlanta. The program is specially designed for students looking to change careers without starting over.
Students can leverage their existing non-nursing bachelor’s degrees to earn a BSN in as few as 12 months through a combination of online coursework, onsite experience at the College of Nursing’s state-of the-art lab and clinical rotations at top area hospitals.
“It is our duty to do everything we can as educators to keep up with the demand by providing excellent nursing education options like our new Accelerated BSN program in Atlanta,” said Dr. Linda Streit, dean of the College of Nursing. “We are dedicated to developing knowledgeable, ethical, caring and compassionate nurses who are ready to become the next generation of highly qualified practicing nurse leaders in Georgia and across the nation.”
Georgia is projected to need an additional 13,510 registered nurses by 2026 in order to keep up with the demands of a rapidly growing population. That’s a little more than 5,000 new nurses each year.
In fact, demand for nurses is so great in the area that Forbes recently listed Atlanta as one of 15 great cities for nurses, citing demand and pay as key factors in the magazine’s selection of the city.
. Mercer’s ABSN program has seats available now and offers three start dates each year. The University is currently accepting applications for the program’s first start date in May 2019.
To learn more, visit absn.mercer.edu or call (844) 319-2108.
Mercer University Website |
| | Good News for our Federal Contractor Friends
OFCCP rescinds Active Case Enforcement, establishes opinion letters and early resolution procedures
In another trifecta Friday, the Office of Federal Contract Compliance Programs issued three Directives that, for the most part, are good news for federal contractors. The first rescinds the Obama Administration’s Active Case Enforcement Directive. The second establishes procedures for the early resolution of violations for contractors with multiple establishments, and the third provides for the issuance of opinion letters by the agency.
Compliance Review Procedures – Directive 2019-01
As hoped for and anticipated, the OFCCP rescinded the Active Case Enforcement procedures put into place by prior Director Patricia Shiu. The ACE procedures required full desk audits in all compliance evaluations, and onsite reviews in every 25th establishment under audit. This resulted in a decrease in the number of compliance evaluations that the agency had the resources to conduct and an increase in the time required to process compliance evaluations.
With this new Directive, the OFCCP states that it will conduct compliance evaluations in accordance with the Federal Contractor Compliance Manual and its other recent Directives, which we have discussed here and here. This eliminates full desk audits in each review and allows the OFCCP to proceed with focused reviews to evaluate compliance with one of the laws it enforces instead of all three (Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act). The Directive also permits the OFCCP discretion to conduct onsite reviews only when necessitated by issues discovered during the desk audit. In addition, the change will allow the agency to increase the number of compliance evaluations that it conducts each year by using its resources more effectively.
Early Resolution Procedures – Directive 2019-02
In a significant change to resolving areas of potential non-compliance, the OFCCP established Early Resolution Procedures to allow the “OFCCP and contractors with multiple establishments to cooperatively develop corporate-wide compliance with OFCCP’s requirements.” The new procedures apply to all compliance evaluations in which a Predetermination Notice, a Notice of Violation, or a Show Cause Notice have not been issued as of November 30, 2018.
It appears that the OFCCP will premise applicability of the ERP on information provided solely during the desk audit. Thus, if indicators of discrimination are discovered (even if explainable or rebuttable), the OFCCP will proceed with these procedures. (The ERP may also apply to violations that do not involve discrimination, and those procedures are outlined in the Directive). First, the agency will “schedule essential interviews with appropriate company employees, rejected applicants, and human resources staff. . . .” The agency will also request “electronically available information to refine the indicators, identify potential affected applicants and/or employees, and calculate the estimated monetary remedy.” If the OFCCP still concludes that discrimination occurred, the ERP option will be offered to the contractor.
The contractor may either accept or reject participation in the ERP. If proceeding under the ERP, the contractor must meet with the OFCCP within 14 calendar days to attempt conciliation. Unless the contractor can convince the OFCCP that its analyses are incorrect, the OFCCP will seek make-whole relief for the affected class members at the establishment under review and “will require the contractor to review all, or a negotiated subset of, its remaining establishments for the similar violation(s) during the [five year] progress report-monitoring period, and if necessary, implement corrective actions at those establishments. . . .” The contractor would then also be required to submit semi-annual reports for five years for all of its establishments (or the negotiated subset), including “the results of its analysis, findings, any corrective actions, and will provide OFCCP with all supporting documents and information reasonably related to such a review.”
Depending on the size of the contractor and the type of violation at issue, this could be a monumental undertaking. For example, if the OFCCP contends that a selection criterion for an entry-level position at most of the contractor’s facilities had a discriminatory impact, the contractor would have to eliminate that criterion and then report its applicant and hiring data for a five-year period at all of those locations.
If conciliation fails and the contractor does not reach an agreement with the OFCCP, the compliance evaluation would continue under the normal procedures.
The primary upside for contractors in engaging in the ERP is that the OFCCP will not schedule a compliance evaluation of any establishment covered by the agreement during the five-year monitoring period. Considering that the establishment is effectively being audited every six months during that five-year period, that’s not much enticement, is it?
Opinion Letters and Help Desk – Directive 2019-03
Finally, the OFCCP announced that it will begin issuing opinion letters on issues such as jurisdictional coverage or how it exercises its regulatory authority. In addition to accepting direct requests for opinion letters, the agency will monitor questions received by its Help Desk and publish those as anonymous opinion letters with the consent of the individual posing the inquiry. Although the agency still needs to develop procedures to implement this Directive, it notes that opinion letters will not be provided to resolve issues that are the subject of ongoing or expected litigation, or during the pendency of a requestor’s compliance evaluation.
The OFCCP also stated that it will make some Help Desk inquiries and responses “dynamically available and searchable as a self-service option on OFCCP’s website.”
As contractors and companies striving to determine whether they are contractors often have difficulty determining whether and how the OFCCP’s regulations apply in specific circumstances, these resources may be of great benefit. We look forward to reviewing the results and sharing interesting or significant developments with readers.
Cara Yates Crotty, Partner, Constangy Brooks Smith & Prophete Columbia Office,
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SAFETY—New OSHA memo relaxes its anti-retaliation rule.
On Oct. 11, OSHA published a memorandum softening its position regarding the anti-retaliation rule it adopted in 2016 related to the reporting of illnesses and injuries. The OSHA rule prohibited employer retaliation against employees reporting workplace injuries and illnesses and implementation of policies that discourage accurate reporting, according to a recent Employer Law Report.
Change in policy under Trump. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies, explained Day. However, OSHA's October 11 memo changes that position, taking a significantly more relaxed approach on this anti-retaliation rule. Specifically, OSHA states that it "does not prohibit workplace safety incentive programs or post-incident drug testing."
Under the Trump Administration, OSHA's new position is that actions related to safety-incentive programs or post-accident drug testing are legitimate when taken to promote workplace health and safety. The anti-retaliation rule is violated only when employers penalize employees for reporting workplace injuries and illnesses.
Incentive programs. Under the previous interpretation, OSHA took issue with incentive programs that conditioned rewards on low workplace safety incident rates, claiming that these programs actually deterred accurate reporting of illnesses and injuries. Now, OSHA has revised its position and provides examples of permissible incentive programs
First, incentive programs rewarding employees for reporting hazards and near-misses encourage employee involvement in a culture of safety. "Positive action" taken in regard to this type of incentive program is always permissible according to OSHA.
The second type of incentive program addressed by OSHA is rate-based—one that rewards employees for an injury-free month or similar reduced rates. The anti-retaliation rule in the past considered these incentive programs improper. Conversely, OSHA now takes the position that these incentive programs are permissible so long as they "are not implemented in a manner that discourages reporting."
Don't discourage reporting. Employers must have "adequate precautions" to ensure employees feel free to report. Alone, a statement encouraging employees to report, assuring that they will not face retaliation, is unlikely to meet this burden. Further, OSHA offers the following as suggestions for employers:
Create a work culture that supports and emphasizes safety over rates
Implement incentive programs that reward employees who report unsafe working conditions
Use training program to reinforce reporting rights and responsibilities
Implement a mechanism to evaluate employees' willingness to report
Post-accident drug testing. Under the previous interpretation, OSHA considered automatic post-accident drug testing improper. It required the policy to call for testing only where there was a "reasonable possibility" that drug use contributed to the accident. Recently OSHA changed its position, stating "most instances of workplace drug testing are permissible" under the anti-retaliation rule. These permissible instances of drug testing include:
Random drug testing
Testing unrelated to reporting of work-related injuries or illnesses
Required drug testing under state workers' compensation laws or federal laws
Drug testing to investigate the cause of an accident that harmed or could have harmed employees
Generally good news for employers. In short, OSHA's relaxed stance on incentive programs and post-accident drug testing may lead to less scrutinizing of employers. However, employers should not completely ignore the original interpretation, as it provides good tips and may help foster a culture of safety in your workplace. Although rate-based incentive programs are permissible under the current administration, consider pairing a rate-based incentive with one that rewards active behaviors, such as reporting hazards. Though OSHA permits post-accident drug testing, it is a good practice to only test when there is reason to believe the accident involved drugs or alcohol.
Beware: under-reporting could lead to under-recording. Finally, one aspect of the anti-retaliation rule not discussed was a concern for under-recording of injuries and illnesses. As a result, any incentive program encouraging under-reporting could lead to under-recording, resulting in employer liability for inaccurate recordkeeping.
HR Ideas and Trends Newsletters,812,Ideas and Trends,(Nov. 8, 2018) HRAnwers Now Jourdan D. Dave
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| Georgia Employers' Association Office Holiday Schedule
December 24 - Closed December 25 - Closed January 1 - Closed |
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