Workplace Law Update November 24, 2015. Discussion Items Employee Classification OSHA – Confined...

Workplace Law Update

November 24, 2015

Home Builders Association of Greater Cincinnati 2

Discussion Items

• Employee Classification• OSHA– Confined Spaces– Reporting

• Supervisor Overtime Threshold• Accommodations

November 24, 2015


Employee Classification• Employee vs Independent Contractor

– FSLA and state wage and hour laws apply to employees, not independent contractors

• Employers are not free to simply designate certain employees as independent contractors

• Employment status is determined by law, not by the parties’ agreement• Factors

– The worker’s skill and initiative – does worker exercise independent business judgment?

– The permanency of the worker’s relationship with the employer – permanency or indefiniteness in the relationship suggests employee status

– The nature and degree of control by the employer – who sets pay amounts, work hours and how work is performed, free to work for others and hire helpers.

• Various Governmental Standards for ClassificationNovember 24, 2015


Employee Classification

Builder – Subcontractor Relationship• Potential control versus actual control• Contract provisions are important• Control versus monitoring of work• Greater problem for subcontractors than

builders

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Recommended Contract Changes for Subcontractor Agreements

“Notwithstanding any other provisions of the contract, the subcontractor retains all control over the essential terms and conditions of its employees’ employment.”

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Practical Problems• Finding good subcontractors• Train builders on how to deal with

subcontractors• Governmental investigation

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OSHA Confined Spaces

• Ruling became effective August 3rd

• Enforcement will not begin until January 8th for employers making good faith efforts to comply with the standard– single-family, duplexes, townhouses– multi-family have to comply now

November 24, 2015



• What is a “confined space”?– Limited means of entry and/or exit– Large enough for a worker to enter it– Not intended for regular/continuous occupancy

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• Construction site– Manholes– Sewer systems– Stormwater drains– Water mains– Crawl spaces

– Attics– Heating– Ventilation– HVAC ducts– Pits

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OSHA Confined Spaces• Permit is required if space:– Contains or has potential to contain hazardous atmosphere– Contains a material that has potential for engulfing an

entrant– Has an internal configuration that could lead to entrant

being trapped or asphyxiated by inwardly converging walls or by floor that slopes downward and tapers to smaller cross-section

– Contains any other recognized serious safety or health hazard

– Exception: Excavations under Section 1926 Subpart P

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• Before work begins, a “competent person” must evaluate work site and identify confined spaces

• If changes in use or configuration to non-permit space, must determine whether to reclassify

• Must notify employees and take effective measures to prevent entering of unauthorized employees

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OSHA Confined Spaces• If permit space, must develop and implement written

permit space program• “Controlling contractor” is primarily responsible• “Entry employer” – whose employees enter space• Equipment & training requirements• Communication & continual evaluation of conditions

– “attendant” is important• Entry supervisor issues entry permit• Emergency response and rescue

November 24, 2015


OHSA Confined Spaces

• Resources– NAHB Fact Sheet– NAHB Confined Spaces in Construction Toolkit– OSHA Confined Spaces Website– OSHA Small Entity Compliance Guide– OSHA Memorandum on What Constitutes "Good

Faith Compliance Efforts”

November 24, 2015


OSHA Reporting

• New rules in effect since January 1, 2015• Required to report:– Any work-related fatality within 8 hours of

employer learning of occurrence– Any in-patient of a single employee, any

amputation, or loss of any eye within 24 hours of the employer gaining knowledge of occurence

November 24, 2015


OSHA Reporting

• 3 Reporting Options1. By telephone to local OSHA office (513) 841-

4132; if not there, need to call national hotline 2. By telephone to national hotline: (800) 321-

OSHA3. Electronically at OSHA.gov.

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OSHA Reporting

• What to report:– Company name– Location of incident– Time of incident– Type of reportable incident– # employees involved– Names of employees involved– Contact information– Brief description of incident

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OSHA Reporting

• 3 Categories– Category #1: will result in inspection– Category #2: OSHA will ask questions and then

decide whether to inspect– Category #3: Rapid Response Investigation – OSHA

will call and send a letter requesting employer to conduct own investigation and report findings to OSHA

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OSHA Reporting

• Resources– NAHB Summary of Requirements– OSHA Injury Reporting & Recordkeeping Website

November 24, 2015


Overtime Threshold• DOL plan would raise salary level at which white-collar

workers are exempt from minimum wage and overtime pay– Current: $23,660– Proposed: $50,440

• One size fits all – regardless of cost of living• Non-discretionary bonuses?• Automatic Adjustments• Rule could impact up to 116,000 construction supervisors

(6,400 in Ohio) Source: NAHB

• Effective date of January 1, 2016

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Accommodations

• Disabilities• Pregnancy/New Moms• Religion• Gender Identity & Sexual Orientation

November 24, 2015


HBAGC Regulatory Updates

http://www.cincybuilders.com/

regulatory-updates.html

November 24, 2015

Workplace Law Update November 24, 2015. Discussion Items Employee Classification OSHA – Confined...

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