Wednesday, December 1, 2021

Wage And Hour Inspections, OSHA Issues Increasing Under Biden

cotton ginning
The Department of Labor’s Wage and Hour Division has inspected two South Texas gins this season. 

We have seen three issues pop up over the past few weeks related to the U.S. Department of Labor. The first one is related to the Wage and Hour Division of DOL. The second two are Occupational Safety and Health Administration related issues.

We have seen two Wage and Hour inspections in South Texas this year. Last year, we had two inspections out of the same regional office, so the two this year are likely a follow-up to the ones from last year. This feels like a pattern they are starting in this Wage and Hour regional office. Only time will tell how long it will last.

These inspections do not appear to be much different from the ones we have seen in the past. Some of the main items they check include overtime, so be sure you are paying your overtime correctly (including daily and weekly overtime). H-2A workers must be paid overtime as well in the same manner as your regular employees. A second component is housing.

Be sure accommodations are inspected unless they are public-type housing, such as a hotel. In Texas, even public housing must be inspected. If you have workers who are on salary and do not get overtime pay, be sure these employees are classified properly. All workers must be paid an hourly wage and overtime unless they meet a specific exemption under the Wage and Hour law.

Wage and Hour inspectors will also check pay stubs to be sure you include the correct information with each paycheck. We have not seen many issues with our pay stubs but be sure your Employer ID number and the last four digits of the employee’s Social Security number are included on the pay stubs.

They will also check bonus payments. Overtime is generally due on bonus payments. If you are not familiar with how to do this, contact your association office for more details.

Heat-Related Measures

There are two issues going on with OSHA this month, both of which are in the discussion stages. But we have not seen any inspections at cotton gins on either issue.

The first one is related to heat. The Biden administration has initiated enhanced measures to protect workers in hot environments. While we do not expect this measure to affect gins significantly, it is a program worth watching. One of the main concerns is they have set the bar for what they consider hot as a heat index that exceeds 80 degrees Fahrenheit. There are a lot of areas in cotton country where 80 degrees would not be considered particularly hot.

There are not a lot of additional details on this program, except that the OSHA area directors have been tasked to prioritize heat-related complaints and expand the scope of their other inspections to address heat-related hazards. While this program is currently an enforcement initiative, there is also talk of OSHA developing a full heat standard soon. Your associations will be keeping a close eye on this issue as it moves through the OSHA process.

COVID-19 Concerns

The second OSHA issue is related to COVID-19. As you have all heard, the Biden administration has directed the agency to develop rules that will require all employers with more than 100 employees to ensure their workers are vaccinated or that they test the unvaccinated workers at least weekly.

In response to this request, OSHA will issue an Emergency Temporary Standard. It can remain in effect for no more than six months and then would have to be replaced by a permanent standard.

OSHA has announced it is working to develop the standard and has said it will not release the actual details of the emergency rule until the rule is issued. In other words, we are not going to know exactly how this rule will work until it is issued.

While the administration requested a threshold of 100 workers, OSHA may pick a different threshold. In addition, there has been no discussion of whether the request would include all workers or only full-time workers. These types of details make a big difference. Another big issue will be the availability of test kits and how the testing part of the rule will be implemented.

It’s highly probable this rule will be challenged in court, and there will undoubtedly be requests for the courts to block the rule until the challenges are complete. In other words, we really don’t know how this rule will shake out over the next four months.

Most likely, the best way to prepare for this rule is to continue to encourage your workers to get vaccinated and to follow your current COVID-19 protocol. If you have more than 100 employees, you may want to check with local providers to see if you can find one that will give group COVID-19 shots and supply COVID-19 testing materials if the rule moves forward.

Whether you have 100 employees or not, it is important for all employers to keep a close eye on the COVID-19 rules being promulgated by OSHA. As with all things COVID 19-related, the only constant about the rules is they are likely to change. Stay tuned — OSHA will likely be very active under the current administration’s leadership.

J. Kelley Green, TCGA director of technical services, contributed this article. Contact him at kelley@tcga.org.

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