Employment Law This Week: OSHA Fines, ACA’s Contraception Opt-Out, Illegal Firing, Off-the-Clock Security Screenings

Episode 5: Week of November 16, 2015

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We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new episode! Read the firm's press release here and subscribe for updates.

This week's topics ...

(1) OSHA Fines Rise
OSHA fines are set to increase for the first time in 25 years. Under the new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015—an increase of as much as 82%. After this "catch up" adjustment, the fines will keep pace with inflation moving forward. We asked Valerie Butera from Epstein Becker Green how employers can boost their safety programs to avoid OSHA citations.

(2) Supreme Court to Review ACA’s Contraception Opt-Out
The Affordable Care Act’s (ACA’s) birth control provisions are heading back to the U.S. Supreme Court. At issue is whether the ACA’s opt-out process violates the Religious Freedom Restoration Act. Under the opt-out, religious organizations do not have to pay for contraception, but other accommodations are made so that employees will still receive coverage. The high court will review a consolidation of seven cases to decide whether the opt-out “substantially burdens” religious freedom. Like last year’s landmark Hobby Lobby decision, this case addresses the extent to which corporations have the same rights as natural persons and how those rights affect a company’s legal obligations towards its employees. This is the latest case, but undoubtedly not the last one, on this topic.

(3) NLRB Finds That Chipotle Illegally Fired Worker for Discussing Wages
The National Labor Relations Board (NLRB) ruled that Chipotle illegally fired an employee for participating in minimum wage protests. The NLRB ruled that the firing by the chain was a violation of the National Labor Relations Act. Though the employee’s supervisor claimed he was fired for poor performance, the NLRB found that the firing was motivated by the employee’s participation in the protests and his discussion of pay with other employees. Other restaurants are facing similar charges from the NLRB arising from the "Show Me 15" protests.

(4) Wages for Off-the-Clock Security Screenings
Two federal class actions challenging off-the-clock security screenings reach different outcomes. Bath & Body Works recently agreed to settle a suit in California over unpaid overtime and off-the-clock security inspections. But a federal judge in the same state dismissed a similar class action against Apple in which retail workers claimed that they should be compensated for time spent having their bags checked. The judge concluded that the employees were not performing job duties and could avoid the screenings by not bringing a bag or cell phone to work. Click here for more on this trend.

(5) In-House Counsel Tip of the Week
Eugene Schlanger, a regulatory and compliance attorney, gives some advice on how to prepare for employment issues before they arise.

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