ISSA Legislative & Regulatory Update April 2017
EPA Seeks Public Input on Existing Regulations for Repeal or Modification
ISSA Wins 2017 EPA Safer Choice Award
BBB Issues Warning about Doing Business with Waterford Management
Waiting Game: Future of Proposed Overtime Rules Remains Uncertain
Housekeepers at a Catholic-Affiliated University Allowed to Unionize
NYS Issues Ingredient Disclosure Proposal
California Ingredient Disclosure Bill Progresses in State Senate
California Considers Rule Protecting Hotel Housekeepers
California Regulations on Use of Criminal History Information in Employment Decisions
Maryland General Assembly Sends Paid Sick Leave Law To Governor
NOW IN EFFECT: D.C. Law Restricts Employers From Making Credit Check Inquiries
What Employers Need to Know About Arizona’s New Paid Sick Time Requirements
EU Ecolabel Introduces New Criteria for Cleaning Products
Come join ISSA in our nation’s capital for a one and a half day conference covering the latest legislative, regulatory and sustainability topics that will help shape the institutional and industrial cleaning industry going forward.
The ISSA Forum, slated for June 20-21, will be held at the Hyatt Regency Crystal City, Arlington, VA, only minutes away from Washington, DC’s convenient Ronald Reagan National Airport. This government affairs and sustainability oriented program will feature a host of timely subjects including:
- The Trump Administration: Implications for the Business Community
- EPA’s New Guidelines and Recommendations for Ecolabels
- Ingredient Disclosure for Cleaning Products
- Trends in Efficient and Green Buildings: Opportunities for the Cleaning Industry
- FDA’s New Regulations: Antibacterial Washes and Sanitizers
Who Should Attend. Manufacturers, distributors and all other ISSA members can benefit by attending the ISSA Forum. Laws, regulations, market trends and other forces are constantly changing, and have a direct impact on the cleaning industry and your company’s ability to be successful. This informative conference provides members with much needed information to better anticipate, prepare and succeed in the ever changing world in which we live.
Stay ahead of the curve by attending The ISSA Forum! More information is available online here.
Meet your organization’s DOT Hazmat Employee Training requirements by attending ISSA’s webinar series, DOT Hazmat Employee Training Made Easy!
Manufacturers, distributors and others involved in shipping (or offering for shipment) chemical cleaners and other products regulated as “hazardous material” must train and certify their “hazmat employees” consistent with the DOT training regulations set forth at 49 CFR 172.704. And now ISSA’s DOT Hazmat Employee Training Made Easy provides you with an easy solution to meet your training obligations.
When: The webinar series will be conducted at 12 p.m. Eastern/9 a.m. Pacific on April 25 and May 2 (Drivers must also attend a webinar session on May 9 at the same time.). All sessions will be archived so that members can view the webinar anytime 24 hours the live broadcast.
What: All attendees will be trained consistent with the DOT training requirements at 49 CFR 172.704, and will receive a certificate evidencing their successful training upon passing a take home test.
More Information: For pricing and other information regarding the ISSA DOT Hazmat Employee Training Made Easy, please click here. (NOTE: Quantity discounts available. Please contact Tracy Weber, ISSA, firstname.lastname@example.org).
On April 13, EPA issued a notice seeking public input on existing regulations that may be appropriate for repeal or modification as required under the Trump Administration. The Agency has invited comments by interested parties by May 15, 2017.
This notice is part of EPA’s implementation of Executive Order 13777 issued by President Trump, “Enforcing the Regulatory Reform Agenda,” which seeks to reduce “unnecessary regulatory burdens.” Section 3(a) of the EO directs federal agencies to establish a Regulatory Reform Task Force (Task Force).
EPA Administrator Pruitt designated his Chief of Staff, Ryan Jackson, as the chairman of EPA’s Task Force on March 24. Other members of the Task Force include Byron Brown and Brittany Bolen, Deputy Chief of Staff for Policy and Office of Policy Deputy Associate Administrator, respectively. EPA launched a new webpage with information related to the agency’s regulatory reform efforts, including upcoming meetings.
One of the duties of the Task Force is to evaluate existing regulations and make recommendations “regarding their repeal, replacement, or modification.”
EO 13777 directs the Task Force to identify regulations that:
- eliminate jobs, or inhibit job creation;
- are outdated, unnecessary, or ineffective;
- impose costs that exceed benefits;
- create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
- rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard of reproducibility; or
- derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.
EPA is soliciting public input to inform its evaluation of existing regulations. EPA requests that commenters be as specific as possible in identifying regulations to be repealed or modified, and to include any supporting data such as cost information.
This EPA action is an important opportunity for regulated entities to have input on EPA’s implementation of the Trump Administration’s regulatory reform directives. Administrator Pruitt and others in EPA’s new leadership have expressed interest in reducing regulatory burdens, and are encouraging involvement from regulated parties in identifying outdated or burdensome EPA regulatory actions.
ISSA has been awarded the U.S. Environmental Protection Agency (EPA) 2017 Safer Choice Partner of the Year Award for its support of the Safer Choice program and community, and the promotion of sustainable cleaning products and practices generally.
The award reflects ISSA’s dedication in promoting the EPA Safer Choice program and its goals of safeguarding human health and the environment as well as ISSA’s ongoing support of green cleaning products and practices in schools, work places, and communities. This marks the third consecutive year that ISSA has earned the award.
ISSA will be recognized along with other Safer Choice Partner of the Year Award winners during a public ceremony on Monday, May 15, 2017, at the Gaylord National Resort and Convention Center in Oxon Hill, MD.
The Better Business Bureau of Minnesota and North Dakota ® (BBB) has issued a nationwide alert on Waterford Management, which claims to provide building management and janitorial services, and purports to operate out of Minneapolis.
BBB has received several reports from janitorial supply companies around the country saying Waterford Management has picked up tens of thousands of dollars’ worth of cleaning supplies from them in recent weeks and left them holding the tab. BBB advises all business owners to be extremely leery of solicitations from Waterford Management.
“This is a bit unusual in terms of scams of this nature,” said Susan Adams Loyd, President and CEO of BBB of Minnesota and North Dakota. “Normally, bogus entities like to operate remotely, sticking to wire transfers which are hard to trace. In this case, they’re actually working with third-party shippers to pick up merchandise and then transporting it to points unknown.”
On March 28, BBB confirmed with building management at the address Waterford Management claims as their Minneapolis location that Waterford was no longer at that address. Based on BBB’s review of Waterford Management, it appears they are a highly-organized operation. Multiple businesses that have reported losses to Waterford stated they – Waterford Management – had gone through their credit application process, supplying both professional references and banking information, all of which appeared to check out.
At that point, sales agreements were signed and Waterford Management contracted with third-party shipping companies to pick up cleaning supplies from these companies. After the pick-ups were made, these businesses report that Waterford stopped communicating with them. Subsequently, it was discovered the banking information Waterford had submitted did not hold up to closer scrutiny.
BBB is urging people who have lost money to Waterford Management to report their experience to BBB Scam Tracker, ic3.gov, and the FTC (ftc.gov). BBB also urges all businesses, particularly vendors, to closely review their vetting processes and to verify all references provided before doing business with new customers.
There is still no decision on when—or if—the proposed revisions to the overtime regulations will go into effect.
As you may recall, on November 22, 2016, a federal court in Texas issued an order that blocked the U.S. Department of Labor’s (“DOL”) proposed regulations that would have doubled the minimum salary for many “white collar” workers just before the regulations were to go into effect.
As expected, on December 1, 2016, the Department of Justice (then under the President Obama administration), on behalf of the DOL, filed a notice with the U.S. Circuit Court of Appeals for the Fifth Circuit to appeal the order. The DOL sought to fast-track the appeal, asking the Fifth Circuit Court of Appeals for an expedited schedule. The Fifth Circuit initially granted the request, and issued an order to expedite the legal arguments, with the DOL’s reply brief to be filed by February 7, 2017.
However, on January 25, 2017, shortly after the inauguration of President Trump, the DOL asked the Fifth Circuit for an extension of time to file its legal arguments in order “to allow incoming leadership personnel adequate time to consider the issues.” The Fifth Circuit ultimately agreed to extend the deadline for the DOL to file its legal argument until May 1, 2017.
It will be interesting to see what position that the DOL will take under the President Trump administration. President Trump has endeavored to demonstrate that he is an advocate for American workers, while at the same time also espousing a pro-business agenda.
This issue of increasing the minimum salary under the FLSA is one where advocates for workers and business groups have sharply disagreed. In addition to the possible significant change in the law if the regulations are upheld, how the DOL navigates these differing viewpoints will likely provide important insight into the DOL’s approach to wage issues under the new administration.
Housekeeping employees at a religiously affiliated university had collective-bargaining rights under the NLRA, a divided NLRB ruled in asserting jurisdiction.
Rejecting the university’s urging that it apply the D.C. Circuit’s strict standard to protect religious freedom, the majority applied established precedent under which it would assert jurisdiction over non-teaching employees of religious institutions or nonprofit religious organizations unless their actual duties and responsibilities required them to perform a specific role in fulfilling the religious mission of the institution.
Union Seeks to Represent Housekeepers. A union petitioned to represent a unit of housekeepers at Saint Xavier University, a private institution affiliated with the Catholic Church. The housekeepers were not required to be Catholic or adhere to any specific religion, nor were they required to abide by any religious requirements in carrying out their duties. The university argued that it was exempt from NLRA jurisdiction due to its status as a religious educational institution, but Regional Director disagreed and ordered an election.
The Board granted review, but then remanded for consideration of its recent decision in Pacific Lutheran University, which set out a new test for determining when to decline jurisdiction over faculty at religious universities. The Regional Director again determined that the housekeepers were covered by the Act and the Board again granted Saint Xavier’s request for review.
Precedent Involving Teachers vs. Non-Teachers. In determining whether to exercise jurisdiction over the housekeepers, the Board underwent an exhaustive review of relevant precedent. In NLRB v.Catholic Bishop of Chicago, the Supreme Court held that it could not assert jurisdiction over teachers who taught both religious and secular subjects at parochial schools due to the “significant risk” to First Amendment rights. Later, in Hanna Boys Center, the Board found that Catholic Bishop did not preclude it from asserting jurisdiction over non-teaching employees of religiously-affiliated organizations (in that instance a certain child-care employees at a Catholic residential facility for boys). The Ninth Circuit agreed, ruling that the employees’ “pervasively secular” duties ensured that Board jurisdiction would not impermissibly interfere with First Amendment religious rights.
Duties and Responsibilities. The Board followed the precedent established in Hanna Boys Center to decide whether non-teaching employees at religious colleges or universities have collective-bargaining rights, finding that this standard did not create an unacceptable risk of conflict with the Religion Clauses.
Thus, it reaffirmed its longstanding position that Catholic Bishop was limited to teachers of religious schools, and that the Supreme Court did not intend to create a categorical exemption from the Act’s coverage for religious institutions. It also reaffirmed the Board’s view that Great Falls went too far in subordinating Section 7 rights.
Secular vs Non-Secular Role. Thus, adhering to existing precedent, the Board announced that it would assert jurisdiction over non-teaching employees of religiously-affiliated colleges and universities, unless it has been demonstrated that their actual duties and responsibilities required them to perform a specific role in fulfilling the religious mission of the institution. Applying that test here, the Board found that it had jurisdiction over the housekeepers since they did not have any teaching role or perform any specific religious duties or functions.
Because they were confined to the secular role of providing cleaning services to the university and there was no indication that they were expected to perform a specific role in furthering the religious mission of the university, exercising jurisdiction over them would not create the type of “serious constitutional questions” the Supreme Court sought to avoid in Catholic Bishop.
The New York State Department of Environmental Conservation (NYDEC) issued its long awaited proposal that would require manufacturers and private label distributors of cleaning products to disclose the ingredients in their formulations on the company’s main website. The state’s authority to require ingredient disclosure stems from a section of New York State Environmental Conservation Law that is over 30 years old.
NYDEC issued its proposal April 25 and is inviting all interested parties to submit their comments on the proposal by June 14, 2017. Comments may be submitted directly by email to email@example.com.
ISSA also encourages interested member companies to submit their comments to Bill Balek, ISSA, firstname.lastname@example.org, no later than June 1. All comments submitted to ISSA will be considered for inclusion in the association’s formal comments that it will file with NYDEC.
Scope of Coverage. The NYDEC proposed disclosure requirements would impact all cleaning products; household as well as commercial and institutional products. The following summarizes the information that NYDEC would require manufacturers and private label distributors to disclose on their websites:
- Product and company information including:
- Product’s universal product code
- Description of product (liquid, powder, etc.) and product category
- Whether or not product contains fragrance ingredients
- Complete name of company that manufactures the product
- Contact info for the prepare of the information
- All ingredients intentionally added to a cleaning product including trace quantities
- All ingredients present only as an “unintentional consequence of manufacturing” and present above trace quantities
- For each disclosed ingredient, the following information must be provided:
- CAS Registry Number or CA Index Name
- Percentage of Content by Weight (ingredients are to be listed in order of quantity; percentage ranges are acceptable)
- GreenScreen Benchmark
- Must indicate if ingredient is nano
- Describe ingredient’s functional role
- Indicate if the ingredient is present on a “list of concern”
- Information on human health and environmental impacts
The ISSA Forum. The subject of ingredient disclosure for cleaning products is featured on the agenda of The ISSA Forum scheduled for June 20-21 in our Nation’s Capitol. For more information, please click here.
California lawmakers have renewed their efforts and have moved forward in their goal of passing legislation that would require the disclosure of chemical ingredients in cleaning products.
The Cleaning Product Right to Know Act of 2017 cleared the Senate Committee on Environmental Quality March 29 on a 5-2 vote. The bill, S.B. 258 and authored by California State Sen. Ricardo Lara (D), now heads to the Senate Committee on Labor and Industrial Relations for further consideration.
If enacted, cleaning product labels would have to include ingredients and health impact information, beginning Jan. 1, 2018. Manufacturers would have to provide more detailed information about the products on their websites. Employers also would be required to disclose ingredients on portable containers into which they transfer cleaning products.
S.B. 258 is widely supported by environmental and labor groups, but is drawing opposition from industry.
The full text of the bill can be found online at: https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180SB258
Protecting lodging housekeepers in California from ergonomic injuries is the focus of an ongoing public comment period and hearing set for May 18 by the state’s Occupational Safety and Health Standards Board.
Up for discussion is a proposed rule intended to reduce the likelihood of hotel and other lodging housekeepers suffering musculoskeletal injuries while cleaning rooms and changing bed linens.
Employers would be required to enact a musculoskeletal injury prevention program and to include the workers and their union in designing the program. They also would have to update the plan annually.
The union UNITE HERE petitioned the standards board in 2012 to consider a rule. The board didn’t approve a rule, but did ask the California Division of Occupational Safety and Health to draft a rule.
The California Chamber of Commerce objects to the proposed rule. The chamber believes the mandates duplicate the requirements of the injury and illness and prevention program rule that applies to most employers.
The May 18 hearing is set for the Harris State Building in Oakland. The board is accepting written comments through May 18 at email@example.com.
California’s Fair Employment & Housing Council has finalized and adopted new regulations to establish criteria for the use and consideration of criminal history information in employment decisions where such use may constitute a violation of California’s Fair Employment and Housing Act. The new regulations take effect July 1, 2017, and are available here.
The regulations are intended to clarify, outline and maintain consistency between the laws governing the consideration of criminal history information in employment decisions.
The regulations reiterate existing prohibitions on the use of criminal history information and also require employers to demonstrate a business necessity, in addition to job-relatedness, for requesting a criminal history if the policy or practice of considering criminal history information creates an adverse impact on applicants or employees based on certain protected classes.
Applicants and employees bear the initial burden of demonstrating that the policy or practice has an adverse impact on a protected class. If this showing is made, the burden shifts to the employer to establish that the policy is justifiable because it is job-related and consistent with business necessity. To do so, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account several factors including: (i) the nature and gravity of the offense or conduct; (ii) the passage of time; and (iii) the nature of the position held or sought.
Even if an employer can demonstrate job-relatedness and consistency with business necessity, an applicant or employee may still bring a claim if he or she can show that there is a less discriminatory alternative available to advance the employer’s legitimate concerns.
ISSA California members should review their policies and practices to ensure that their use of criminal history information complies with the new regulations.
On April 5, 2017, the Maryland General Assembly passed the Maryland Healthy Working Families Act (the “Act”) which, if approved by Governor Larry Hogan, would require employers with 15 or more employees to provide their employees with 40 hours of paid sick and safe leave annually beginning on January 1, 2018.
Smaller employers, i.e., those employers with 14 or fewer employees, would be required to provide their employees with 40 hours of unpaid sick and safe leave annually. Under the Act, employees would accrue sick and safe leave at a rate of at least one hour for every 30 hours worked.
Employers would be required to allow employees to use sick and safe leave to care for or treat the employee’s own mental or physical illness, injury or condition; to obtain preventative medical care for the employee or the employee’s family members; to care for a family member with a mental or physical illness, injury or condition; for maternity or paternity leave; or in situations where the absence is necessary due to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member. A family member includes the employee’s children, parents, spouse, grandparents, grandchildren and siblings.
The Act, however, contains exceptions and would not apply to:
- Employees who regularly work less than 12 hours a week;
- Employees who are employed in the construction industry and are covered by a collective bargaining agreement that expressly waives the requirements of the law; and
- Certain “as-needed” employees in a health or human services industry.
- In addition, employers would not be required to allow employees to:
- Use more than 64 hours of sick and safe leave in a year;
- Accrue more than 64 hours at any time; or
- Use sick and safe leave during the first 106 calendar days that the employee works for the employer (although leave must accrue during this initial employment period).
Pursuant to the Maryland Constitution, the Act must be presented to Governor Hogan by April 30, 2017, and the Governor must sign or veto the bill by May 30, 2017. Although Governor Hogan has threatened to veto the bill, both the Maryland House and Senate passed the legislation with enough votes to override such a veto. Should Governor Hogan veto the bill, Maryland lawmakers likely will not have the opportunity to override the veto until next year’s legislative session, which begins on January 10, 2018, because this year’s 90-day legislative session ended on April 10, 2017.
If the Act becomes law, Maryland would become the eighth state to require employers to provide paid sick leave.
On April 7, 2017, the D.C. Fair Credit in Employment Amendment Act of 2016(the “Act”) (L21-0256) took effect as Congress’s review period expired. The Act amends the D.C. Human Rights Act to prohibit employers from discriminating against job applicants and current employees based on their credit information.
Specifically, the Act prohibits, with certain exceptions, D.C. employers from directly or indirectly requiring, requesting, suggesting, or causing any employee or applicant to submit credit information, or using, accepting, referring to, or inquiring into an employee’s or applicant’s credit information.
D.C. joins several states, including California, Illinois and Maryland, in addition to other localities, including Chicago and New York City that have enacted laws that limit private employers’ use of credit checks during the hiring process. The Act, however, extends beyond the hiring process, to cover the use of credit information with respect to existing employees.
D.C. employers that utilize credit checks as part of their hiring or employment practices should assess whether changes to their practices are necessary to ensure compliance with the Act’s requirements.
In November 2016, Arizonans passed Proposition 206. This proposition, entitled the “Fair Wages and Healthy Families Act,” not only increased the state’s minimum wage, but also created new requirements regarding paid sick time in Arizona. This article details the changes regarding paid sick time and the steps employers should be taking before July 1, 2017.
Overview of the Paid Sick Time Requirements. Before the passage of Proposition 206, Arizona did not require employers to provide paid sick time to employees. However, Proposition 206 establishes new requirements regarding (1) paid sick time accrual, (2) permissible uses of paid sick time, (3) how to handle unused paid sick time, and (4) notice to employees regarding paid sick time. These requirements apply to private employers and political subdivisions of the state and become effective July 1, 2017.
Accrual. Under Proposition 206, employers must provide employees with paid sick time. Employees must accrue at least one hour of paid sick time per 30 hours worked. Employers with 15 or more employees must allow employees to accrue, and use, up to 40 hours of paid sick time per year. Employers with less than 15 employees must allow employees to accrue, and use, up to 24 hours of paid sick time per year.
Permissible Uses. Employers must allow employees to use paid sick time for the following purposes:
- mental or physical illness;
- care for a family member who has a mental or physical illness;
- a public health emergency; and
- to address issues related to domestic violence.
Employees do not need to provide prior notice to the employer if the leave is “not foreseeable” unless the employer has implemented a written policy setting forth how notice should be provided. If the leave is foreseeable, then employees must “make a good faith effort” to provide notice. If possible, employees must make a “reasonable effort” to avoid “unduly disrupting the operation of the employer” when scheduling paid sick time.
Employers may not require an employee to find a replacement as a condition of using paid sick time, retaliate against an employee for use of paid sick time, or count paid sick time absences against an employee.
Unused Paid Sick Time. Proposition 206 provides employers two options regarding unused paid sick time. First, employers may allow unused paid sick time to carry over. If an employer allows paid sick time to carry over, employees are still only entitled to use the amount of time required by the statute unless the employer sets a higher limit. Second, if an employer does not allow for paid sick time to be carried over, then the employer must pay employees for unused paid sick time at the end of the year and provide the employee with an amount of paid sick time that is available for the employee’s immediate use at the beginning of the subsequent year.
Employers are not required to pay out the unused paid sick time of employees who have been terminated, have resigned, or have retired, unless the employer has a policy or practice of doing so.
Notice to Employees. Proposition 206 requires employers to provide certain notices to employees. Among other things, employers must provide a summary of each employee’s paid sick time on or with each regular paycheck. The summary must include (1) the amount of earned paid sick time available for the employee, (2) the amount of earned paid sick time taken by the employee to date that year, and (3) the amount of pay the employee has received as earned paid sick time.
Next Steps for Employers. Employers should immediately take steps to ensure compliance with Arizona’s new law. To comply with this law, employers should consider taking the following steps.
Revise Policies. Employers should review current policies to determine whether they are adequate. Many existing policies, including “use it or lose it” policies or policies that do not permit accrual of paid sick time until an employee has been employed for a specified period of time, will not comply with the new law. If current policies are inadequate, employers and/or their legal counsel should revise existing policies or draft new policies to be implemented by July 1.
Provide Notice. Employers should become familiar with the notice requirements. Among other requirements, the Industrial Commission will require a new posting to accompany other required workplace posters.
Payroll and Recordkeeping Requirements. Employers should coordinate with their payroll companies or internal payroll personnel about how paid sick time will be tracked and reported, and be prepared for the additional recordkeeping requirements imposed by the law.
The European Commission will introduce stricter limits to its EU Ecolabel criteria for cleaning products in June 2017, according to EU officials. The new criteria had been finalized and endorsed by member states in November 2016, following a two year revision process.
The major changes to the environmental criteria are summarized below:
- microplastics will be banned from products;
- removal of the derogation for fragrances classified chronic category 3 (H412);
- stricter requirements on preservatives that allow only a sufficient dose to preserve the product;
- bio-based products must be sourced from sustainable plantations with certification required for palm oil, palm kernel oil and their derivatives; and
- packaging using 80% recycled materials is exempt from all other packaging requirements.
The update will cover the following six product groups:
- all purpose cleaners and cleaners for sanitary facilities;
- hand dishwashing detergents;
- dishwashing detergents;
- industrial and institutional automatic dishwashing detergents;
- industrial and institutional laundry detergents; and
- laundry detergents.
After the new criteria come into effect in June, companies holding the Ecolabel will have a 12-18 month transition period to adapt to the new requirements. The next revision will take place in five years.