Friday, December 14, 2018

Rule changes offer some good news for employers

It seems like this columnist is a harbinger of bad news when it comes to business and economics. That’s because I feel obligated as a citizen to give employers and employees the heads-up about pending or passed legislation or rules that will harm their bottom lines and pocketbooks, respectively.

It’s rare that I can highlight positive regulatory changes such as the two recent wins that business owners can savor.

In late-2016, this column looked at how President Barack Obama’s Occupational Safety and Health Administration (OSHA) started demanding changes to employers’ post-accident drug screens. OSHA believed drug tests had caused many employees who dabbled in recreational drugs at home and not within the hours of their employment to not report their injuries to their employer for fear of losing their job or facing some other sort of discipline, causing that injury to linger or result in other workers being injured from failure to address the cause of the injury. OSHA demanded that drug screens not occur automatically (as was the case at most workplaces) but only when the situation permitted -- when drug impairment could have likely been a root cause of an injury.

Interpretation became confusing, and enforcement confounding. Not only that, but it also encouraged unsafe workplaces because employers, for the most part, couldn’t highlight or enforce the dangers that recreational drug use pose in the workplace.

Luckily, President Trump’s OSHA saw the folly in that thanks to constant pressure from safety professionals and human resources managers -- as well as employers befuddled by penalties imposed. A few weeks back, OSHA came out with a new interpretation, making it clear that employers no longer have to determine whether there was “reasonable possibility” that drugs or alcohol contributed to an accident. OSHA once again allows the use of drug and alcohol tests for any and all work related injuries.

In November of last year, this column addressed new employee scheduling standards proposed by Governor Andrew Cuomo’s administration. It was his Department of Labor’s (DOL) intent to change the way that retailers (specifically big box stores) schedule their employees. The DOL wanted to do away with the common practice of having clerks and restaurant workers on-call, getting their schedule that day or the day before. So, they created a set of regulations that would require 14 days advance notice of work schedules and any changes during that period, positive or negative, would see an extra 2 to 4 hours of pay.

The umbrella of these rules was so vast that all employers, not just retailers, were thrown under the bus, including businesses which cannot predict the weather (like golf courses and lawn services) and those driven by  purchase orders (construction companies and factories like mine). On top of that, breakdowns, snow storms, and acts of God were not covered – employers would have had to pay their workers even if they were closed for business and not generating revenue.

These added costs would have been yet another nail in the coffin for upstate businesses struggling to stay profitable and competitive.

Luckily, the column served as inspiration to quite a few of them. Our voices and concerns were picked up by Senator Chris Jacobs who hustled to extend the public comment period and hold a senate hearing about the regulations. Thanks to his efforts and those who spoke up, the DOL went back to the drawing board and revised the language, coming out with their next-to-last draft over a week ago, 10 months after the close of public comment.

The new proposal excludes businesses whose employees’ activities are determined by weather and/or work orders. It also grants exemptions for acts of God, inclement weather, and issues beyond the employer’s control.

It’s a big win for many businesses in New York State, as we come out unscathed from something that could have been financially dangerous. The rule, for the most part, now impacts retailers, restaurants, and the like as was intended when the DOL took up the cause.

But, I encourage the smaller businesses of that bunch (family diners, mom and pop shops) to reach out to the DOL and keep fighting. The revised rules continue to impact you. Why should it if it’s the big boys who created this mess?

My suggestion to you: By January 12, reach out to DOL and ask that they focus only on larger retailers and restaurateurs that have X number of stores or employees in the state, sort of like the fast food minimum wage that requires 30 or more locations (go to for more on the proposal).  

By voicing your concerns victories can be had, just as these two wins show. Do it for the sake of your business and coworkers.

From the 7 December 2018 Greater Niagara Newspapers and Batavia Daily News

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