Law Offices of Stanley E. Niew, P.C.

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Inside This Issue

1.    Update: Injunction to New OSHA Post-Accident Testing Rules Denied by Federal Judge

​2.    Judge Enjoins DOL FLSAOvertime Rule

Update: Injunction to New OSHA Post-Accident Testing Rules Denied by Federal Judge

​Enforcement of OSHA post-accident drug testing and safety incentive rules had been delayed until December 1, 2016. OSHA agreed to the delay at the request of a federal Judge who was considering a lawsuit requesting injunctive relief from the new rules. The Judge recently issued a decision denying the request for injunctive relief. In light of the decision, OSHA has announced that the new rules will be enforced as of December 1, 2016. 
The Judge found that OSHA is merely placing limitations on practices that might discourage the reporting of accidents. Post-accident drug testing and safety incentive programs are not barred by OSHA’s new rules.

The rules require employers to establish reasonable procedures for employees to report work related injuries and illnesses. OSHA will issue citations for failing to provide such a procedure, or providing an unreasonable procedure. OSHA has indicated that requirements for “immediate” and “in person” reporting are unreasonable.

The rules further prohibit retaliation for reporting of work related illness and injury, focusing on three requirements: 1) that the disciplining of employees for safety violations be consistent, regardless of whether violations resulted in injury; 2) that drug testing only occur when there is an objectively reasonable basis for the testing, and should not be implemented where employee impairment could not have contributed to the cause of the injury; and 3) safety incentive programs should not be directly tied to injuries or illness.

For example, raffling off a $500 gift card each month in which no accidents have been reported, and cancelling the raffle for months in which there were accident reported, would violate section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury. Whereas, raffling off a $500 gift card each month in which employees universally complied with all workplace safety rules would not violate the rule. Likewise, rewarding employees for participating in safety training or identifying unsafe working conditions, would not violate the rule.

It is important that employers check that policies and practices concerning drug testing and safety incentives have been reviewed and updated in light of OSHA’s new rules.For a full copy of the new Guidance please contact us.

Judge Enjoins DOL FLSAOvertime Rule

On November 22, 2016, U.S. District Court Judge Amos Mazzant III granted a nationwide preliminary injunction against the U.S. Department of Labor’s overtime rule. State of Nevada v. U.S. Dept. of Labor, No. 4:16-cv-00731-ALM (E.D. Tex. 11/22/2016).

The Court enjoined the rule’s December 1, 2016 implementation that would have changed the salary level to $913 per week for overtime-exempt executive, administrative, and professional white collar workers. That is more than double the amount of the current salary level.

The state plaintiffs had argued that the Department of Labor usurped Congress’ authority in establishing new salary thresholds. Finding that the Department had overstepped its bounds, Judge Amos Mazzant III wrote, “The state plaintiffs have established a prima facie case that the Department’s salary level under the final rule and the automatic updating mechanism are without statutory authority.”

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should the Department choose not to appeal the decision in light of the impending Donald Trump presidency. We will continue to monitor this matter as it develops.The last-minute injunction puts some employers in a difficult position, though — those that already implemented changes in anticipation of the new rules or that informed employees that they will receive salary increases or will be converted to non-exempt status effective December 1, 2016. Issues regarding reversing salary increases, or delaying same, and providing notice to employees, should be dealt with carefully and under advise of legal counsel.

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