OSHA Stand Down for Stand Up Safe Employers — Good Tips on FallsAs the construction industry continues to recover from the COVID-19 pandemic, it also continues to focus on worker safety. Consistent with this focus, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has scheduled the eighth annual “National Safety Stand-Down to Prevent Falls in Construction” event for May 3-7, 2021. OSHA is encouraging construction employers and other stakeholders to join the event to promote awareness and training on how to better control fall-related hazards. It makes sense to consider a few things that might just make you want to participate.

Participation Isn’t Hard

Initially, it will not take much effort for you to participate in the event. Other than the time it takes to get the word out to worksites and to pull information about your fall prevention program together, there is little preparation necessary. You already have what you need most: your fall prevention program. Helpfully, OSHA has also provided suggestions and additional resources on its website that you can use to prepare for a successful event. OSHA even provides links to resources, posters, handouts, and other potentially useful material.

During the National Stand-Down, you can focus your communication on any of the many types of falls that can happen. These can include falls:

  • From ladders
  • From a roof
  • From a scaffold
  • Down a set of stairs
  • From structural steel
  • Through a floor or roof opening
  • Through a fragile roof surface

Of course, the talk should include more than discussion of the risks associated with these types of falls. It should also include discussion on how these falls can be prevented, i.e., your fall protection program, and any improvements to the program that might be considered.

You can promote the National Stand-Down with as much or as little fanfare as you wish. You can formally participate in the event by signing up on the OSHA website, or you can choose to simply have an independent event for the same “fall prevention” purpose. As long as you are using the time to promote awareness of the risks associated with a fall and training employees on fall prevention, your event is “on the mark.” In fact, something as basic as a short, focused “Toolbox Talk” at each worksite should suffice. One note of potential importance: You should remember that requiring employees to participate in the National Stand-Down (which you should do) likely makes the time compensable, i.e., an employee likely must be paid for the time.

There’s an Upside to Participating

Finally, although there is little, if any, downside to participating in the National Stand-Down or in an employer holding an independent event, you should recognize that there is a potentially huge upside: The additional education/training may help improve the safety of employees on your worksite. Remember, as far as the “hurt factor” goes, the potential risk of injury associated with a fall from a height is very high. When an employee is injured from a fall, the injury can be catastrophic. Tragically, almost 40% of annual recorded construction fatalities happen as the result of a fall. If the National Stand-Down event prevents even one such incident, that would be a great return on a small investment.

Essential COVID-19 Tips for Those Essentially Essential: DOL Launches New Wage and Hour Program for Essential WorkersThe Wage and Hour Division of the Department of Labor unveiled a new program, “Essential Workers—Essential Protections,” that focuses on making sure employers comply with overtime and other wage requirements for workers on the frontline of battling the pandemic. Those positions include workers in grocery stores, healthcare, retail, delivery services and agriculture. The program will provide webinars and other training opportunities to learn about workers’ rights under the Fair Labor Standards Act and the Family Medical Leave Act. The DOL also encourages workers who believe that their rights are being violated to contact the Wage and Hour Division for assistance.

The DOL website provides a helpful list of answers to frequently asked questions. Some topics include how COVID-19 might affect agricultural workers and how a worker might request time off if a family member becomes sick. This should provide employers with insight on how the DOL will view these questions and may help you avoid some problems down the road.

Beware Poachers! NY Legislature Takes on “No Rehire” and Employee Poaching IssuesDo you typically include a “no rehire” clause in your settlements with soon to be former employees? How about agreements with other companies that you will not “poach” each other’s employees? If your answer to either of those questions is yes, you should keep an eye on some New York legislation that could impact those practices.

No-Rehire Clauses

One prospective New York bill would prohibit employer defendants from including clauses in settlement agreements that prevent employees from applying for, accepting, or engaging in future employment with the company. Such a clause would be deemed unenforceable although the rest of the settlement agreement would remain intact, so you would still be bound to pay the consideration promised. The bill is before the full state senate now. If enacted, it will take effect 60 days after enactment and would apply to all public and private employers.

New York would not be the first state to restrict no-rehire clauses. Vermont, for instance, provides that an agreement to settle a claim for sexual harassment cannot prohibit or restrict the employee from working for the employer or any parent company or affiliate. Likewise, California law provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”  In 2018, the Ninth Circuit held that the California law survived to the extent it prevented an employee from working at facilities owned or operated by the employer, but failed to the extent it (1) prevented the physician from working for employers that have contracts with employer, or (2) permitted the employer to terminate the physician from existing employment in facilities not owned by the employer.

The EEOC hates no-rehire clauses, taking the stance that it is illegal and potentially retaliatory to include them in settlement agreements related to discrimination or harassment claims. In spite of the EEOC’s position, federal courts have upheld such no-rehire clauses if there is no statute prohibiting it and the plaintiff cannot show pretext (e.g.,  the Tenth Circuit, the D.C. Circuit).

Many employers include no-rehire clauses in their separation and settlement agreements that typically require the former employee to refrain from applying for or seeking employment or reemployment and waive any such right. The risk of not including a no-rehire clause in a separation agreement can be the gift that keeps giving — as a disgruntled former employee could conceivably file a new claim as to each open position for which an application is denied.

Most employers want to include no-rehire clauses in their separation agreements. If this is important to you, be careful and balance the potential scrutiny you may face. If you are in certain states, including New York in the near future, such provisions may be outright invalid. Although the no-rehire provision is common in settlement agreements, you should be aware of the risks and examine the particular state laws to check that such provisions will be enforceable.

No-Poach Ban

A separate prospective New York bill would prohibit agreements between franchisors and franchisees that restrict them from hiring current or former employees of the franchisor or other franchisees or soliciting such employees for hire. Under this bill, any such agreements would be void. An aggrieved employee would have a private right of action under the no-poach agreement to pursue compensatory and punitive damages, along with attorneys’ fees. The bill is also before the full state senate now and would take effect as soon as the governor signs it.

Restrictions on no-poach agreements are not new either. In January 2021, the U.S. Department of Justice issued its first indictment for such an agreement under antitrust laws. The DOJ previously issued guidance in 2016 warning of the antitrust risks with these types of no-poach agreements, stating that someone likely breaks antitrust laws when he or she “agrees with individual(s) at another company to refuse to solicit or hire that other company’s employees (so-called ‘no poaching’ agreements).” Even if there is no actual law prohibiting such activities, employers could be exposed to potential class actions.

Takeaways

If you have offices or employees in New York, keep an eye out for these potential restrictions. It will be interesting to see if other states follow suit. The next time you are preparing a settlement or severance agreement, or someone suggests that we won’t hire employees from each other, have your antennas up and make sure these suggested provisions aren’t prohibited in your state.