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 tinyurl.com/NYcallinpay 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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