1. Workplace Law Update November 24, 2015

2. Discussion Items Employee Classification OSHA – Confined Spaces – Reporting Supervisor Overtime Threshold Accommodations November 24, 2015Home Builders Association of Greater Cincinnati2

3. 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 Classification November 24, 2015Home Builders Association of Greater Cincinnati3

4. 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 November 24, 2015Home Builders Association of Greater Cincinnati4

5. Employee Classification 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.” November 24, 2015Home Builders Association of Greater Cincinnati5

6. Employee Classification Practical Problems Finding good subcontractors Train builders on how to deal with subcontractors Governmental investigation November 24, 2015Home Builders Association of Greater Cincinnati6

7. OSHA Confined Spaces Ruling became effective August 3 rd Enforcement will not begin until January 8 th for employers making good faith efforts to comply with the standard – single-family, duplexes, townhouses – multi-family have to comply now November 24, 2015Home Builders Association of Greater Cincinnati7

8. OSHA Confined Spaces 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 November 24, 2015Home Builders Association of Greater Cincinnati8

9. OSHA Confined Spaces Construction site – Manholes – Sewer systems – Stormwater drains – Water mains – Crawl spaces – Attics – Heating – Ventilation – HVAC ducts – Pits November 24, 2015Home Builders Association of Greater Cincinnati9

10. 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 November 24, 2015Home Builders Association of Greater Cincinnati10

11. OSHA Confined Spaces 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 November 24, 2015Home Builders Association of Greater Cincinnati11

12. 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, 2015Home Builders Association of Greater Cincinnati12

13. 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, 2015Home Builders Association of Greater Cincinnati13

14. 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, 2015Home Builders Association of Greater Cincinnati14

15. OSHA Reporting 3 Reporting Options 1.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- OSHA 3.Electronically at OSHA.gov. November 24, 2015Home Builders Association of Greater Cincinnati15

16. 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 November 24, 2015Home Builders Association of Greater Cincinnati16

17. 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 November 24, 2015Home Builders Association of Greater Cincinnati17

18. OSHA Reporting Resources – NAHB Summary of Requirements – OSHA Injury Reporting & Recordkeeping Website November 24, 2015Home Builders Association of Greater Cincinnati18

19. 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 November 24, 2015Home Builders Association of Greater Cincinnati19

20. Accommodations Disabilities Pregnancy/New Moms Religion Gender Identity & Sexual Orientation November 24, 2015Home Builders Association of Greater Cincinnati20

21. HBAGC Regulatory Updates http://www.cincybuilders.com/ regulatory-updates.html November 24, 2015Home Builders Association of Greater Cincinnati21