Temporary Workers—An OSHA Perspective

OSHA

The Occupational Safety and Health Administration (OSHA) has previously stated that temporary workers are at an “increased risk of work-related injury and illness.” Among other reasons, OSHA has expressed concerns that temporary workers are sometimes not included in employers’ usual safety training and assessments. Because of that stated vulnerability, OSHA often focuses on temporary worker status in accident and injury investigations as part of its Temporary Worker Initiative and its Multi-Employer Citation Policy. This means that staffing agencies and employers that use staffing agencies to meet their personnel needs (i.e., “host employers”) need to be aware of best practices related to temporary worker safety and be prepared for the issue if OSHA comes knocking.

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Deferred Compensation Plans and FICA Taxes: A Valentine’s Day Match or Disaster?

Taxes

While February is usually the month for valentines and candy conversation hearts, I hope you will use this month to give a little love and attention to one of the often overlooked “other” taxes applied to payments from nonqualified deferred compensation plans (NQDC Plans)—FICA taxes! Companies commonly fail to implement the unique FICA tax rules applied to NQDC Plans and these special rules can create confusion for participating executives. This can result in the company’s potential exposure to IRS penalties, higher tax liabilities for the company and the employees, and unhappy employees. Confirming proper FICA tax treatment for your NQDC Plans is time well spent.

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Class Action Waivers: Silence May NOT Be Golden

Class

Since when does silence in a contract speak louder than words? The United States Supreme Court will soon answer this question in deciding whether an arbitration agreement between an employer and its employees can authorize a class action arbitration proceeding when the agreement is silent as to the issue. Employees with arbitration agreements that contain only general language — agreeing to arbitration of employment-related claims that arise out of the individual employee’s employment with the employer — will be watching this decision carefully to see whether the Court finds that employers, through silence (without a word in the agreement that authorizes “class” or collective actions,” or who can be a “class representative” for a group of employees who claim to have been harmed), inadvertently agree to arbitrate not only an employee’s individual claims but that of a class. So . . . how did this issue arise when the Court’s holding and reasoning in a 2010 decision, Stolt-Nielsen, S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662 (2010), appears to hold otherwise? Well, basically by the 9th Circuit Court of Appeals parsing the definition of “silence.” In a 2017 decision in Varela v. Lamps Plus, Inc., the Ninth Circuit affirmed the district court’s order compelling a class-wide arbitration based on a silent agreement by explaining that the Supreme Court’s decision in Stolt-Nielsen “accepted the parties’ stipulation” that silence meant that no agreement has been reached. Therefore, the Court concluded that the fact that an arbitration clause “does not expressly refer to class arbitration is not the ‘silence’ contemplated in Stolt-Nielsen.”

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DHS Issues Final Rule Changing H-1B Cap Selection Process

DHS

The Department of Homeland Security (DHS) published a new rule on January 31, 2019 that makes significant changes to the way in which DHS will administer the annual H-1B allocation (the H-1B cap). Starting in April 2019, DHS will change the order in which the agency allocates the available slots under the H-1B cap. In 2020, DHS will implement an electronic registration system that employers must use when seeking permission to file H-1B cap-subject cases.

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Biometric Privacy: Illinois Supreme Court Decision Allows Claims to Proceed Without Showing of Actual Harm

Biometric

On January 25, 2019, the Illinois Supreme Court handed down a key ruling that will make it significantly easier for consumers and workers to sue and recover damages for mere non-compliance with the requirements of the state’s Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (BIPA or Act). In its highly anticipated decision in Rosenbach v. Six Flags Entertainment Corp., the state’s high court unanimously held that actual harm is not required to bring an actionable claim under BIPA, and that a violation of BIPA’s technical requirements alone can support a cause of action under the Act. Thus, an individual who merely alleges a technical violation of BIPA is sufficiently “aggrieved” under the Act — with statutory standing to sue for significant statutory damages and injunctive relief — even if that person suffered no actual injury or harm as a result of the violation.

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