All posts by : psgmlaw

Julie Pace and Heidi Nunn-Gilman

On July 24, 2025, DOL announced the relaunch or update of several voluntary self-audit and compliance programs in the Wage and Hour Division, Employee Benefit Security Administration, OSHA, MSHA, the Office of Labor-Management Standards and the Veterans’ Employment and Training Administration.  According to DOL, the purposes of the self-audits are to “build a culture of compliance and trust” and “enhance worker protections while reducing the likelihood of a formal investigation.”  While many of these programs have existed for years, DOL has updated some requirements and started a campaign to encourage employers to use these programs.

I. RELAUNCH OF THE PAYROLL AUDIT INDEPENDENT DETERMINATION (PAID) PROGRAM BY WAGE AND HOUR DIVISION.

The PAID program, originally started by the first Trump Administration in 2018, allows employers to conduct a self-audit, report to DOL any back wages due, and work with DOL to resolve the minimum wage or overtime violations that the employer discovered during the self-audit and pay any back wages due.  By conducting the audit and self-reporting violations, employers have the DOL stamp of approval on the back wage payments and can avoid litigation or civil monetary penalties and liquidated damages on amounts due.

Under the PAID program, employers are required to review certain compliance materials from DOL and obtain a certification before conducting the audit, then conduct an audit of the previous two years wage and hour practices.  Upon completion of the audit, the employer reports to DOL its back wage calculations, amounts due, supporting evidence, and methodology of calculations.  After DOL reviews the submission and makes a final determination, DOL submits a summary of unpaid wages and settlement documents to the employer.  The employer thereafter has 15 days to pay the unpaid wages and submit proof of payment to DOL.

The Wage and Hour Division has also expanded PAID to cover certain Family and Medical Leave Act violations that the employer discovers and self-reports.

More information on the PAID program is available at https://www.dol.gov/agencies/whd/paid

II. OSHA VOLUNTARY PROTECTION PROGRAMS. 

The DOL Occupational Safety and Health Administration Voluntary Protection Program (VPP), which started in 1982, recognizes employers and workers in private industry and federal agencies who implement effective safety programs and have injury and illness rates lower than the national average for their industry.  The VPP involves employees, the employer and OSHA working together to establish systems to prevent fatalities and injuries through hazard identification and prevention, worksite analysis, and training.

Employers in the VPP are exempt from OSHA programmed inspections as long as they maintain VPP status.  Employers must submit a written application to OSHA and undergo an onsite evaluation before OSHA will admit them to the program.  Of course any violations found during the OSHA onsite evaluation program must be corrected, or employers who opt not to complete going through the VPP program could risk willful citations if those violations continue.  Union employers must obtain the consent and participation of the union for program participation.  VPP status is reevaluated every 3-5 years, and OSHA issued a revised VPP Policies and Procedures in 2020.

More information on the OSHA VPP is available at https://www.osha.gov/vpp/  In the half of the states with OSHA-approved state safety programs (which apply except to property remaining under federal jurisdiction, e.g. military bases and Native American lands), the VPP program is administered by the state OSHA programs, such as those in Arizona, California, North Carolina, Oregon, Washington, and many other states where we have experience in defending employers.

III. EMPLOYEE BENEFITS SECURITY ADMINISTRATION (EBSA) PROGRAMS.

The EBSA has long had two self-correction programs for ERISA plans.  The Voluntary Fiduciary Correction Program (“VFCP), allows employers and plan fiduciaries to correct violations of ERISA, such as delinquent participant contributions or prohibited transactions, with lower penalties than would be imposed if the government audited and identified a problem.  The program, started in 2002, was update in 2025 to add new a self-correction tool for specific transactions that is supposed to be easier to use.  More information on the VFCP is available at https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/correction-programs/vfcp

The Delinquent Filer Voluntary Compliance (“DFVC”) Program allows plans that failed to timely file the Form 5500 to file late and pay lower penalties.  More information on the DFVC is available at https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/correction-programs/dfvcp

IV. “SALUTE’ PROGRAM TO PROMOTE USERRA COMPLIANCE. 

Since 2015, the DOL Veterans’ Employment and Training Service has maintained a technical assistance program called SALUTE – Support and Assistance for Leaders in USERRA Training and Employment – to help employers address USERRA issues.  The program provides quick, informal guidance on how USERRA applies in specific circumstances.  Before VETS will provide information, the employer requesting assistance must certify that they are not involved in a USERRA investigation and are not seeking an opinion for use in a lawsuit.  More information is available at https://www.dol.gov/agencies/vets/programs/userra/salute

V. MSHA COMPLIANCE SAFETY AND HEALTH (CASH) PROGRAM. 

Started in 2018, the Compliance Assistance in Safety and Health (CASH) Program focuses on helping new mine operators and new miners (less than one year experience) ensure safe operations. It provides compliance assistance, training resources, and comprehensive materials regarding key safety and health topics for mining operations.   The updated CASH Program website explains that the new focus on CASH is part of “MSHA’s proactive response to the anticipated surge in U.S. domestic mining productivity, driven by the national demand for critical minerals as outlined in Executive Order 14154, “Unleashing American Energy,” an Executive Order signed by President Trump on his first day in office.

VI. CONSULTATION AND ASSISTANCE REGARDING THESE COMPLIANCE PROGRAMS. 

The current focus on self-audit and reporting provides employers with the opportunity to make corrections in their wage and hour, safety, and benefits programs and pay fines or penalties that are less than what would be imposed if the government were to conduct an audit and find violations.  For assistance with wage and hour compliance, OSHA Safety, ERISA compliance, or conducting an internal audit of your company’s wage and hour, safety, or benefits practices,  or for other questions on employment law, OSHA, immigration compliance, or Forms I-9 contact Julie Pace at jpace@psgmlaw.com or 602.858.8799 or Heidi Nunn-Gilman at hgilman@psgmlaw.com or 602.851.8797.

Julie Pace and Heidi Nunn-Gilman

A Field Assistance Bulletin (FAB) 2025-3 was published on June 27, 2025 and provides guidance on how the Wage and Hour Division should handle FLSA violations and expressly provides that the DOL is not able to pursue liquidated damages in administrative settlements. Instead, if DOL wants to seek double damages, it must do so through judicial action  –not in the administrative process.

In recent years, DOL has automatically included liquidated damages, which are double the amount owed for unpaid back wages and overtime, in wage and hour investigations.

Prior to a decade ago, liquidated damages were not automatically included with DOL settlements.  That was a newer trend that FAB 2025-3 reverses.

Companies still need to ensure good wage and hour compliance.  Complete regular self-audits of time cards, compensation, and classifications of workers as piece rate, hourly, salaried exempt and salaried non-exempt.  Make sure employees record all hours worked.

Consider using biometric, GPS or other electronic time-keeping options as those methods can help keep records and ensure integrity in hours worked.  Make sure to pay overtime to piece rate workers and other non-exempt employees who work over 40 hours in a workweek.

We also recommend having all employees sign a time-keeping acknowledgement form that employees understand and agree to be honest and accurate in their recordkeeping practices, review their time card each week for accuracy and report any discrepancies, and includes other obligations to help foster a compliance program at your company.

For assistance with wage and hour compliance, conducting an internal audit of your company’s wage and hour practices,  or OSHA, immigration compliance, or Forms I-9 contact Julie Pace at jpace@psgmlaw.com or 602.858.8799 or Heidi Nunn-Gilman at hgilman@psgmlaw.com or 602.851.8797.

By Julie A. Pace and Heidi Nunn-Gilman

A new law signed this week by Governor Hobbs provides that construction activity is allowed from 5:00 am to 7:00 pm on Monday through Friday and 7:00 am to 7:00 pm on Saturdays from May 1 to October 15.  The law takes effect immediately.

Counties and municipalities may not make or enforce any ordinance that would prohibit general construction activities during those hours.

Additionally, local rules must allow concrete to be poured at least one hour before the time that general construction activities are allowed to start.

The purpose of the new law is to address heat safety and allow employees to work before the highest heat of the day. Employers should ensure that they have heat safety plans in place that satisfy the OSHA or local government requirements. Workers should stay hydrated with electrolytes.

For assistance with heat illness and safety plans, OSHA, I-9s, E-Verify, or construction law contact Julie Pace at jpace@psgmlaw.com or 602.858.8799 or Heidi Nunn-Gilman at hgilman@psgmlaw.com or 602.851.8797.

I-9 Inspections Ahead! Are You Ready?

I-9 and E-Verify Seminar in Prescott 5-15-25. May 2025 I9 Event- Final Flyer!

By Julie A. Pace and Heidi Nunn-Gilman

On April 3, 2024, USCIS released a new version of the Form I-9.  The Edition Date on the bottom left is now 01/20/2025, which was President Trump’s first day in office.  The expiration date remains 05/31/2027.  We recommend using the new I-9 immediately.

The two unexpired prior versions of the Form I-9, both with an edition date of 08/01/2023, are still valid and can still be used until their expiration date.  One form expires on 07/31/2026 and the other on 05/31/2027.  Employers should pay close attention to the expiration dates, as it is a technical violation of the I-9 rules to use a superseded version of the Form I-9.

The changes in the Form I-9 is primarily to the language.  Under the Biden Administration, the I-9 was changed to replace the word “alien” with “noncitizen.”  The new I-9 returns to the prior language of “alien” rather than noncitizen, clarified documents on List B, and updated the privacy notice.

The new Form I-9 can be found on USCIS website at https://www.uscis.gov/i-9.

It is anticipated that the Trump Administration will increase the number of I-9 audits conducted by ICE. Employers should review their Forms I-9 and immigration compliance practices to ensure that they are ready for an audit.  Our firm routinely works with companies to conduct internal I-9 audits and to defend companies if they are audited by ICE.  For assistance with the ICE, I-9, or E-Verify process contact Julie Pace at jpace@psgmlaw.com or 602.858.8799 or Heidi Nunn-Gilman at hgilman@psgmlaw.com or 602.851.8797

Best Lawyers has recognized Pace Selden Gilman Marks PLLC (“PSGM Lawâ€) in the 2025 Edition of “Best Law Firmsâ€Â® for Commercial Litigation.  The Best Lawyers rankings are based on a rigorous evaluation process that includes the collection of clients and professional reference evaluations, peer review from leading attorneys, industry leader interviews and review of additional firmographic highlights provided by law firms as part of the formal research submission process.

Earlier this year, David Selden was recognized in the 2025 Edition of Best Lawyers® in America for his work in Commercial Litigation, and Danny Marks was recognized in the 2025 Edition of Best Lawyers: Ones to Watch in America® in the following practice Areas: Alternative Dispute Resolution, Commercial Litigation, Construction Law, Corporate Law, Labor and Employment Law – Management, Litigation – Construction, and Litigation – Labor and Employment.

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Julie Pace was a keynote speaker at the 2024 CFMA Southwest Conference on understanding the latest developments in employment law and risk management strategies to protect the company on September 23, 2024.

PSGM Law is proud to support our local youth at Prescott Valley Football & Cheer Club!

Hitmen Youth Football & Cheer is dedicated to providing Prescott Valley’s youth with an incredible tackle football and cheer experience. We’re proud to support such a fantastic organization that fosters teamwork, discipline, and fun in our community.

Learn more about how PSGM Law is making a difference and ways to support you at psgmlaw.com.

By Julie Pace, David A. Selden and Heidi Nunn-Gilman

After more than 40 years, the Federal Government proposes making a change to OSHA’s inspection procedures under 29 CFR 1903.8, which could drastically impact non-union employers.  Currently, the Federal OSHA Walkaround Representative who is authorized to accompany the inspector is limited to an employee of the company or, if the employees are represented by a union, an authorized representative of the union.

A. WHAT IS OSHA’S PROPOSED CHANGE? 

The new Federal OSHA proposal would broaden the definition of the Walkaround Representative to allow workers to designate someone who does not work for their employer to represent the workers and accompany the inspector during an OSHA inspection.

The proposed OSHA rule, which is under final review before implementation, would allow multiple persons who claim to represent employees to accompany inspectors, including potentially union organizers from multiple and competing unions, community activists and organizers, and other third-party outsiders.

Arizona has a State-approved OSHA plan administered by Arizona Division of Occupational Safety and Health (ADOSH).  ADOSH reviews and generally adopts Federal OSHA rules, but can adopt different rules that are at least as effective as the Federal rules or are able to clarify items, which is what the Arizona Legislature seeks to do with HB 2209.  The Amendment does not change current law regarding OSHA designated walkaround representatives but seeks to close the gap on risk issues to companies that the new proposed federal rule failed to address.

B. HOW DOES THE PROPOSED OSHA RULE INCREASE RISK AND LIABILITY TO EMPLOYERS?

Frequently, when long standing precedent is proposed to be materially changed, there can be unintended consequences, as is the case with the new proposed Federal OSHA rule.  Generally, the stakeholders, such as businesses in this matter, identify and try to educate and persuade the Government agency to modify its language to close gaps or loopholes that cause harm to companies.

In Arizona, this should be a bi-partisan effort to protect Arizona employers who raised the concerns about the issues with the new federal proposed rule.  The Federal rule goes too far without protective guardrails to employers.

The new proposed Federal rule is silent regarding important items such as:

1. The number of outsiders who can join an ADOSH inspection;
2. Who pays for outsiders injured during an ADOSH inspection (i.e. who carries the workers compensation (WC) insurance for the third-party outsiders and how does WC exclusivity work?);
3. How does ADOSH ensure that a Company’s trade secret and proprietary information are protected in the same manner as currently provided in Arizona law if third-parties are permitted under the new proposed rules. ARS 23-408.
4. Ensure third-party outsiders are trained in safety before joining OSHA inspection.
5. Ensure third-party outsiders have and use Personal Protective Equipment (PPE)  at jobsites.

Arizona employers need to be protected regarding the above items.  Arizona employers should not have trade secrets jeopardized or be subject to personal injury actions for being compelled to have third parties attending ADOSH inspections.

C. The Rep. Matt Gress HB 2209 Amendment Is A Solution Proposed to Help Protect Arizona Employers, While Preserving the Status Quo For ADOSH Inspections.

Representative Matt Gress has taken the lead and sponsored the HB 2209 Amendment to protect businesses and safety professionals in Arizona during OSHA inspections and preserves the status quo for ADOSH inspections.

Representative Gress worked with the business community to draft and sponsor HB 2209, which amends the specific section of Arizona law (A.R.S. § 23-408) that governs procedures for OSHA inspections by ADOSH.  The law would protect business and prevent abuses that can be damaging to Arizona businesses if the federal procedures are changed to open up OSHA inspections to outside persons in workplaces that are not unionized.  The specific provisions of the bill would:

1. Preserve the right of a union representative to act as the Walkaround Representative for workplaces where the workers are represented by a union and subject to a collective bargaining agreement.

2. If federal law requires that another person can be present in non-unionized workplaces as the Walkaround Representative, ADOSH would not consent to third-party representative to join the walkaround inspection without the following requirements, including:

a. Only one additional person as an employee representative would be allowed to be present during the OSHA inspection for non-unionized employers. This prevents multiple people showing up to disrupt workplace or cause safety issues. a.

b. To prevent the non-employee Walkaround Representative from being injured and to prevent lawsuits to claim injuries and potentially harass the employer, the non-employee Worker Walkaround Representative present during the ADOSH inspection can be required by the employer to have the following:

i. Appropriate safety training for the worksite.

ii. Personal protective equipment and other safety equipment.

iii. Workers compensation insurance coverage that covers the non-employee Walkaround Representative and identifies the Company as an additional insured (Additional insured coverage helps protect employer if third party has injury during the inspection).

iv. To prevent the non-employee Walkaround Representative from damaging the company by disclosing confidential, proprietary and trade secret information, ADOSH would ensure that the third party enter into written agreement to maintain the confidentiality of the company’s proprietary information.  This is necessary because allowing outsiders to accompany OSHA inspectors could open the door to the opportunity for an employee to claim to be represented by a person who has an interest in committing industrial espionage or seek access to information for which disclosure could cause harm to the competitive position of the company from whom the information was obtained.  The outsider could not accompany the ADOSH inspector to view and photograph confidential manufacturing process and trade secret information unless a signed confidentiality agreement was in place.

There are provisions in existing law for ADOSH to be required to respect the confidentiality of company’s trade secret information, but those provisions do not apply to third-parties who accompany ADOSH inspectors. This provision is important because OSHA inspections can create access to confidential manufacturing methods, product formulas, personal information and more.

c. Add a definition of “authorized employee representative,” which is currently not defined in Arizona law.  The amendment would add a definition, “the agent of a labor organization that has a collective bargaining relationship with the employer that represents the employees who are members of the collective bargaining unit and who are employed at the location to be inspected.”  This definition is consistent with current federal law pursuant to 29 CFR 2200.1(g) and preserves the current ADOSH inspection authority regarding union representatives.

D. Federal OSHA Area Director Barnett Responded to the Rep. Gress HB 2209 Amendment

In response to the Gress Amendment, Federal Area OSHA director Zachary Barnett issued a detailed letter addressing items in Rep. Gress Amendment.

E. Rep Gress Response to OSHA Area Director Barnett Letter

Rep. Gress has a detailed response to OSHA Area Director Barnett regarding the HB 2209 Amendment.

To keep up on information from Rep. Gress regarding this issue, please feel free to subscribe to his newsletter at www.mattgress.com/newsletter-signup.

F. Conclusion

With this much dialogue, hopefully good can come of the situation and many Government officials and elected officials in a bi-partisan manner can realize that the current form of the proposed new Federal rule needs modification.  Arizona companies should not be subject to new financial risk and loss of trade secret and proprietary information.

The HB 2209 Amendments seeks to supplement existing state law for ADOSH and only apply if the new federal proposed rule goes into effect.

Without the Governor and the Legislature approving the HB 2209 amendment, the current law has no limit on the number of persons that can be designated as the non-employee Walkaround Representative.  There would be no provisions to protect a company’s confidential or proprietary information or protect the employer if the Walkaround Representative was injured during the inspection, even through no fault of the Company.

Arizona companies deserve protections.  Everyone appreciates the hard work and diligence of all of the elected officials to dive deeper into the details of the proposed new federal law on changing OSHA inspections, recognize the real financial consequences and losses to companies if there are no protections, and work together to achieve a solution that keeps Arizona businesses strong and competitive.  Thank you to the Governor and all legislators for taking the time to learn about some of the gaps not addressed in the new proposed federal rule change.