By Alan Rothenbuecher, partner, and Brad Wenclewicz, associate lawyer, Benesch, Friedlander, Coplan & Aronoff LLP

The landscape of employment law is undergoing changes that could significantly impact the manufacturing industry. These developments necessitate employers to stay informed and proactively update their policies to ensure compliance with evolving regulations. This update summarizes key legal changes across several areas.

EEOC Strengthens Protections Against Workplace Harassment
The US Equal Employment Opportunity Commission (EEOC) issued its first update on workplace harassment guidance in 25 years. This long-awaited update, effective April 2024, offers clarifying and expansive protections for employees. Notably, the new guidance expands the definition of sex-based discrimination under Title VII to include sexual orientation and gender identity. Harassment based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassment because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

The EEOC’s updated guidance goes beyond physical workplaces, recognizing the growing importance of virtual work environments. This means offensive behavior on virtual platforms (e.g., Zoom, Teams), such as inappropriate comments or images, now can be considered harassment. The guidance also reaches beyond the traditional workday, acknowledging that even activity on personal social media accounts can contribute to a hostile work environment if it targets a colleague.

Importantly, the EEOC’s new guidance isn’t legally binding, but is meant to serve as a “resource” for employers and the courts. Although the guidance contents “do not have the force and effect of law,” employers should be aware that the new guidelines may lay the foundation for employees to allege workplace harassment in broader contexts, and employers should review their harassment policies in light of the new guidance.

New DOL Rule Tightens Independent Contractor Classifications
In January 2024, the US Department of Labor (DOL) issued a final rule making it harder for businesses to classify workers as independent contractors under the Fair Labor Standards Act (FLSA). This new, final rule repeals a prior rule (issued by the Trump administration) with a new, less predictable multi-factor test. The new rule uses an “economic realities” test, which considers the following factors:

• The contractor’s opportunity for profit or loss;
• The investments made by the contractor and the putative employer;
• The degree of permanence of the relationship between the contractor and the putative employer;
• The nature and degree of control by the putative employer over the contractor;
• The extent to which the work performed by the contractor is an integral part of the putative employer’s business; and
• The contractor’s skill and initiative.

Some workers may require reclassification from independent contractors to employees, thereby making them eligible for minimum wage and overtime protection (and, in some instances, eligible for employer benefits such as health coverage and/or retirement benefits). As recommended, all employers should review their classification of independent contractors to determine whether any reclassifications are necessary to comply with the new rule.

FLSA Overtime Rule Increases Salary Thresholds
The DOL also increased the minimum annual salary requirements in order to qualify under some of the FLSA’s most frequently invoked exemptions – the executive, administrative and professional (EAP) exemptions, and the highly-compensated employee (HCE) exemption. The final rule took effect on July 1, 2024.

Under the new EAP threshold, effective July 1, 2024, employees classified as exempt under the EAP exemptions must be paid at least $844 per week (or $43,888 per year), marking a 23% increase from the current $684 per week (or $35,568 per year) threshold. The final rule does not stop there, and imposes a new threshold of $1,128 per week (or $58,656 per year) effective January 1, 2025, a near 65% increase from the current threshold. In addition, beginning July 1, 2027, and every three years thereafter, the final rule calls for additional updates to the EAP salary threshold based on then-current earnings data.

Under the new HCE threshold, effective July 1, 2024, employees classified as exempt under the HCE exemption must be paid at least $132,964 per year, up 23% from the current $107,432 threshold. Of that $132,964, an amount equal to the EAP exemption threshold – at least $844 per week – must be paid on a salary or fee basis. And, like the EAP threshold update, the HCE update also comes with forward-looking increases, with an increase to $151,164 on January 1, 2025, and updates every three years beginning on July 1, 2027.

Although adjustments to these salary thresholds have been successfully challenged in the past, employers should prepare with the expectation that the final rule will take effect. As an initial step, employers should review their exempt staff salary levels and understand how these changes may impact their organization.

OSHA Heat Stress Standard
The fight for a national heat stress standard to protect workers is nearing a critical juncture. A proposed rule by the Occupational Safety and Health Administration (OSHA) currently is under review at the White House, raising hopes for a long-awaited safeguard against a growing threat.

While the specifics of the proposal (RIN: 1218-AD39)
have not been made public, OSHA previously indicated that mandatory protections could kick in any time the heat index reaches 80° F.

A proposed rule by the Occupational Safety and Health Administration (OSHA) currently is under review at the White House, raising hopes for a long-awaited safeguard against a growing threat.

Absent a formal standard, OSHA currently relies on the General Duty Clause under Section 5(a)(1) to protect workers from heat stress. For example, in March 2024, OSHA cited a Florida employer under the General Duty Clause due to employees performing their duties in temperatures ranging from 76° F to 87° F. As noted in the citation, such “exposures are likely to lead to the development of serious heat-related illnesses… such as heat cramps, heat stress, heat exhaustion and heat stroke.” The citation outlined a plan to prevent future heat-related illnesses and deaths, including:

• Assign a program manager to oversee the program and enforce its protocols.
• Gradually acclimate new or returning workers to hot environments to minimize risk.
• Encourage frequent water intake and provide electrolyte drinks for extended work periods.
• Schedule more frequent breaks in cool, shaded areas during high temperatures.
• Monitor workers for signs of heat stress and remove them from the work area if necessary.
• Train supervisors and employees on heat illness symptoms, risk factors, response procedures and the effects of certain substances in hot environments.
• Develop an emergency plan for remote work locations to ensure prompt medical attention in case of heat illness.

With a new rule from OSHA on the horizon, employers should monitor the heat index for those vulnerable employees, and make sure proper rest and hydration are provided to prevent against heat-related incidents.

Navigating Ergonomics
In the 1990s, the OSHA ergonomic rules were in major dispute. Before Bill Clinton left office, his administration issued a final ergonomic standard in November 2000, which was to go into effect January 16, 2001, and employers had until October 14, 2001, to comply. Before October came around, however, newly elected President George W. Bush signed a bill repealing the OSHA ergonomic rule.

Although an OSHA ergonomic rule does not exist today, it may come back into light given the newly appointed US Occupational Safety and Health and Review Commissioner Mark Eskenazi, who is a former National Labor Relations Board lawyer. Even if an ergonomic standard never comes to pass, OSHA remains vigilant in protecting workers from musculoskeletal disorders (MSDs) through the General Duty Clause. Recent citations against nursing homes, manufacturers and even Amazon fulfillment centers demonstrate OSHA’s ongoing enforcement. Indeed, OSHA’s 2023 National Emphasis Program on Warehousing and Distribution further emphasizes ergonomic and heat stress hazards in these facilities.

OSHA emphasizes employers’ responsibility to provide a safe and healthful workplace. Implementing an ergonomic process can significantly reduce MSD risks. Key steps in this process include providing management support; including workers in assessments, solution development and implementation; educating workers about ergonomics and workplace risks; encouraging workers to report MSD symptoms; and implementing solutions like workstation adjustments, proper lifting techniques or breaks to reduce MSD risks.

Workplace Violence
California employers beware! Effective July 1, 2024, Senate Bill 553 strengthens Cal/OSHA’s authority to penalize businesses lacking a Workplace Violence Prevention Plan (WVPP). The law defines four categories of workplace violence and mandates WVPP implementation, employee training and recordkeeping for incidents (minimum five years). Non-compliance can result in hefty fines, ranging from $18,000 for initial violations to over $161,000 for willful or repeated offenses.

Outside of California, OSHA has made protection of employees a priority under the General Duty Clause in Section 5(a)(1). In 2017, OSHA published an updated compliance directive providing OSHA officers with guidance in responding to complaints of workplace violence. To combat workplace violence, employers can establish zero-tolerance policies, conduct workplace assessments to identify risk and implement violence prevention programs with clear procedures and employee training.

For more information about any of the preceding items or to use the membership free legal time benefit through MAPP, contact Alan Rothenbuecher at har@beneschlaw.com/216.363.4436 or Brad Wenclewicz at bwenclewicz@beneschlaw.com/216.363.6191.

More information: www.beneschlaw.com