News and Analysis
NLRB Proposes Rule Requiring Posting Of NLRA Rights
The National Labor Relations Board has submitted a Notice of Proposed Rulemaking to require employers to notify employees of their rights under the National Labor Relations Act. Private sector employers would be required to post the notice of employee rights where other workplace notices are typically posted, and if the employer primarily communicates with employees via e-mail or other electronic means, the notice would be required to be posted electronically, too. Read more about this proposed rule in the latest Bricker & Eckler Human Resources Bulletin. From OMA Connections Partner, Bricker & Eckler LLP
Gun Bill Stalls Out
While the Ohio Senate may still meet next week to act upon appointments made by outgoing Governor Ted Strickland, the Ohio General Assembly has all but completed work for the year. Among the 11th hour legislative issues rumored for passage was a bill to relax restrictions on carrying firearms.
“Looking forward to the next legislative session, it’s important for manufacturers to bear in mind that lawmakers are generally supportive of expanding gun rights. Employers that choose to regulate firearms at the work place are advised to highlight the issue with your state representative and state senator,” advises the OMA’s Ryan Augsburger.
Employee or Contractor? Know the Difference and Be Prepared.
This bill failed, but watch for it coming back next session:
One of the last bills considered by the Ohio House of Representatives before completing legislative business was HB 523, which would have altered state employment law and redefined “employee,” which would have had ramifications in pay and benefits, as well as workers’ compensation, unemployment insurance, and tax reporting.
It’s easy to make mistakes when it comes to wage and hour law and enforcement. OMA’s Connection Partner, Jackson Lewis, will be presenting a webinar on this topic for OMA members in the first quarter of 2011.
To be sure you receive the promotion, go to My OMA and enroll in the Human Resources Management Community. There is no extra charge and you’ll be sure to receive all OMA communications for human resources managers.
Self-Insured for Health Care? Think Small
Self-insured health care plans are having better patient outcomes and lowering their costs by focusing, when appropriate, on minimally invasive surgical procedures. Minimally invasive procedures (MIPs) are now used to treat a wide range of conditions, including colon disease, endometriosis, some cancers, and acid reflux. As opposed to traditional open surgery, MIPs can lead to shorter recovery time, less hospital time, less pain and less scarring.
If you are a decision maker for the focus of your self-insured health plan, you can read more about the benefits of MIPs. And to learn more about how self insured employers are incorporating MIPs into their health care plans and promoting them to employees, contact Kimberly Munro, MS Manager, Health Care Policy & Economics, Ethicon Endo Surgery a Johnson & Johnson Company.
OSHA Noise Standards Threat Delayed But Not Gone
On November 19, OSHA announced the comment period for the re-interpretation of the OSHA noise abatement requirements would be extended by 90 days (from December 20) in response to business concerns. The reinterpretation would require significant new, costly engineering controls to abate noise.
National groups, including the National Association of Manufacturers (NAM), are taking a leading role in advocating against these federal government regulations. The NAM reported this week that OSHA has indicated that it will issue citations for employers found in non-compliance. Unless employers can prove to OSHA inspectors that the controls would put their company out of business or that they would be impossible to make — a task for which there are no clear guidelines or standards — companies will be forced to put the costly new requirements into effect.
The NAM has organized forums for manufacturers to educate congressional staff of the harmful effects of the regulations on December 7 in Washington, D.C. Concerned manufacturers can contact the NAM to participate in either a 10:30 a.m. session or a 2:00 p.m. session.
Gun Rights Promoted
The gun lobby is pushing legislators to advance legislation to allow firearms to be carried into bars and restaurants. The Senate legislation has been stalled in the Ohio House and on Tuesday, two Republican members intend to force consideration, a maneuver possible when 51 legislators sign a “discharge petition.” Similar House legislation has also been pending that goes even further and erodes property owners’ rights to limit the carrying of firearms.
Passage of the legislation and favorable action by Governor Strickland is possible. The OMA staff will be on guard to fight possible amendments that could impede employers’ abilities to maintain sensible workplace protections. Concerned manufacturers will want to highlight concerns with state lawmakers today.
Human Resources Tools – Special Instructions
Standard Employment Forms for 2011
Free to OMA Members
As an OMA member, you’re entitled to receive these standard up-to-date reproducible forms to assist your human resource department, managers and supervisors. These forms comply with federal and Ohio laws and have been reviewed by OMA’s law firm, Bricker & Eckler LLP, for compliance as recently as November 2010. Best of all, they are free of charge to you as an OMA member.
The reproducible forms we offer are:
1. Application for Employment
2. Health Questionnaire/Physical Condition
3. Absentee Calendar/Bi-Monthly Absence Review
4. State & Federal Posting Requirements
5. Vacation Schedule is a legal size form. (Please note that you may need to select ‘legal size’ paper from your Print properties function, and be sure to load legal size paper in your printer.)
These legally approved standard employment forms are provided for you to reproduce to meet your company’s needs. You may duplicate them – as many or as few as you need – in-house or take them to your printer. Because these forms have been prepared to comply with both federal and Ohio laws, any changes or alterations you make to them may cause them to no longer comply.
*Please see the special instructions below about the use of the Application for Employment and the Health Questionnaire in connection with federal law.
Special Instructions About the Use of the Application for Employment in Connection with The Fair Credit Reporting Act
The Application for Employment states that the applicant authorizes the employer to conduct certain investigations.
The Fair Credit Reporting Act (FCRA) requires that employers follow very specific procedures before they can obtain “consumer reports.” The definition of a “consumer report” is expansive. For example, if an employer conducts a criminal background check on an applicant and the check is done by a third party for a fee, the report received by the employer is a “consumer report.” In fact, a good rule of thumb is that any background check conducted by a third party (i.e. someone other than the employer) may be a “consumer report.” Additionally, if an employer possesses consumer information, The Fair Accurate Credit Transaction Act (FACTA) governs how that information is disposed (“The Disposal Rule”). The Disposal Rule applies not only to paper records but also to consumer information found in electronic form. The Disposal Rule requires entities disposing of such information to take reasonable, specific measures to protect against unauthorized access to or use of the information in connection with disposal. Thus, employers using the Application who want to obtain “consumer reports” (i.e. criminal background checks, drug tests, medical exams, etc.), will need to comply with the FCRA and FACTA. Employers may wish to seek legal assistance before attempting to obtain such a report.
Special Instructions About the Use of the Health Questionnaire in Connection with The Americans With Disabilities Act (ADA)
The OMA Health Questionnaire may be used only after making an offer of employment to a candidate conditioned on the results of the health questionaire/exam, and before the applicant starts work. It is during this period of the Employment process when an employer has the most flexibility to make inquiries about disabilities, illness, disease, and medication as they relate to the employee’s ability to do the job in question. The employer may make a job offer to such an individual, conditioned on the satisfactory outcome of a medical examination or inquiry, providing that the employer requires such examination or inquiry for all employees in a particular job category, not merely individuals with known disabilities, or those whom the employer believes may have a disability. Further, member companies are reminded that they must not withdraw the conditional offer of employment based on the medical examination or inquiry results unless the company can establish that the reason for the withdrawal is:
1. Because the individual is unable to perform the essential functions of the position with or without reasonable accommodation; or
2. Because the person would pose a substantial risk to the safety of himself/herself or others and no reasonable accommodation is available.
The second part of the questionnaire is to be completed by the reviewing doctor. Please note that a doctor who conducts medical examinations for an employer should not be responsible for making employment decisions or deciding whether or not it is possible to make a reasonable accommodation for an otherwise qualified person with a disability. That responsibility lies with the employer. Accordingly, OMA member companies should provide doctors who conduct such examinations with specific information about the particular job for which the individual is being considered. The employer should inform the doctor that any recommendations or conclusions related to hiring or placement of an individual should focus on only two concerns:
1. Whether this person currently is able to perform his/her specific job; and
2. Whether this person can perform this job without posing any “direct threat” to the health and safety of himself/herself or others.
The space provided for the physician’s conclusions should be utilized for this information. Once the employer is presented with conclusions that the person is currently unable to perform the essential functions of the job or poses a “direct threat,” the employer must then decide whether or not it is possible to make a reasonable accommodation for the person.
NOTE: Medical information on employees is confidential and must be kept in a separate file away from the employee’s personnel file and treated as a confidential document.
Special Instructions About Application for Employment
You will notice that the top of the Application for Employment contains an Equal Opportunity Employer notice, which indicates that the member employer does not discriminate on the basis of various characteristics protected by Ohio and federal law (i.e., race, color, religion, etc.). Among the protected characteristics listed is “any other characteristic protected by applicable law.” This is included, in part, because some members may also be subjected to local ordinance(s) that prohibit discrimination on the basis of additional characteristics such as, for example, sexual orientation and/or marital status. Although you are not required to specifically list any such characteristics on the employment application, it would be a prudent business practice to identify whether any of the cities, townships, municipalities, etc. in which you operate have such a local ordinance and, if so, familiarize yourself with any additional protected classes that may be covered thereby.
Provided as a courtesy of The Ohio Manufacturers’ Association (OMA). For more information about this and other OMA services, call (800) 662-4463 or visit www.ohiomfg.com.
Manufacturers Dodge So-Called “Paycheck Fairness” Bullet
The U.S. Senate this week acted on a bill passed by the House at the start of this session: the so-called Paycheck Fairness Act. Sparing manufacturers potential costly litigation, penalties and compensatory damages, the Senate Republicans blocked the Act by a 58 to 41 vote.
Manufacturers perceived the bill as unnecessary given existing adequate anti-discrimination laws and a job killer. Manufacturers back fairness in hiring, compensation and job advancement for all employees, and they use legal competitive pay practices to retain and attract employees.
Thanks to the National Association of Manufacturers for its Key Vote letter on the bill.
Tougher Noise Control Regulation Pending
OSHA has recently reinterpreted its rule governing noise. Older plants could be subjected to expensive retrofitting to reduce noise levels.
While you are at it, take a moment to call your member of Congress to ask him or her to urge OSHA to delay rule action, in order to give industry time to analyze and comment.
Unemployment Compensation: Business Seeks Extension of Interest Waiver
Business groups nationally are pressing for an extension of the waiver of interest on loans to states to pay unemployment compensation. The current extension expires next year.
Congress is asked to extend it through federal fiscal year 2012. Without a waiver, employers in up to 32 states are likely to see up to $3.6 billion in increased state taxes to cover this increased cost through 2011 and 2012, according to the national business group UWC.
The impact on Ohio, which has a balance of $2.3 billion in loans from the feds, is projected to be $300 million for those two federal fiscal years. That’d likely be $300 million in additional taxes on employers.
Meanwhile, Democrats in the U.S. House of Representatives are seeking a three month extension of the federal emergency unemployment compensation provisions. That bill would add an additional estimated $12 billion to the federal debt.
Contact your congressional representatives here. Tell them to protect job-creating employers from additional costs.