In a previous issue, we discussed a new OSHA reporting regulation that was initially scheduled to take effect on August 10, 2016, but was pushed back to November 1, 2016, and then delayed again until December 1, 2016 as a result of pending litigation by a number of trade associations, which sought to enjoin the regulation as it related to post-accident drug testing programs. On November 28, 2016, the Texas court refused to issue the injunction and the new rule became effective on December 1, 2016. Texo ABC/AGC Inc. v. Perez, Case No. 3:16-cv-01998 (N.D. Tex. 2016).
With the recent problems that have arisen because of the Ebola virus's extension to the United States and Spain (the death of Thomas Eric Duncan in Dallas and Madrid hospital issues), all employers may face a serious crisis in the future. With the first cases of Ebola transmitted outside the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, where a month-long outbreak has killed more than 3,400 people, questions are arising as to how well-prepared other countries and employers are with the fear and potential disastrous consequences of an Ebola outbreak. According to the World Health Organization (WHO), Ebola is a virus characterized by a hemorrhagic fever (a fever accompanied by an escape of blood from a blood vessel) and is frequently fatal. As stated above, in the last month, over 3,400 people have lost their lives and the average fatality rate for Ebola exceed 50% of those affected. While the current outbreak is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria, Ebola cases have been reported in the United States and in Spain.
As most private employers are well aware, numerous federal and state government agencies conduct on-site investigations and have been doing so for a long period of time [for example, Occupational Safety and Health Administration (OSHA inspectors) and United States Department of Labor (USDOL inspectors)]. Soon to be joining this array of "government visitors" is the Equal Employment Opportunity Commission (EEOC). The EEOC is engaging in a new and more aggressive investigation strategy. It will no longer accept an employer's Position Statement at face value and is now demanding on-site visits to interview witnesses and gather information. It is the opinion of the author that these "on-site visits" are merely "fishing expeditions" conducted by the EEOC to gather any and all harmful information it can find out about an employer, be it for the case at issue or to develop a bigger case in the future. Suffice it to say that during these investigations, the EEOC representative will do everything he/she can to "bait the hook" and catch the biggest fish.
As technology improves and more of the workforce becomes conversant with Smart Phones, iPhones, and Touch Pads, the chance of the ever-expanding litigation dealing with Wage and Hour claims becomes greater. In an article that appeared in our June 2011 entitled "A Bridge to Justice - A Bridge Too Far?" the author discussed the unprecedented collaboration between a Federal Government Agency [Department of Labor (DOL) - Wage and Hour Division] and the American Bar Association (ABA) Standing Committee on Lawyer Referrals and Information Systems. That article detailed the fact that the DOL and the ABA had entered into an approved attorney referral system that would allow the DOL to refer cases that they could not handle to "qualified counsel." It is now becoming quite clear that the DOL - Wage and Hour Division is expanding its ability to interface with both employees and the consuming public.