General Assembly to resume work on Work Zone Safety reform

Those who know me, personally or professionally, know that my latest legislative project in South Carolina has been to seek to rewrite and toughen laws on work zone enforcement. While the challenge of making work zones safer has been a professional problem for years, it became much more personal back in March of last year when a drunk driver entered a lane closure, ramming and destroying my personal vehicle while I was doing a site inspection.

I can tell numerous stories and show numerous examples of where my co-workers had close calls, the reality is that work zones are at least as dangerous for motorists. In over a decade in the industry, not a single company employee was killed or seriously injured in a work zone incident, while eight motorists and three pedestrians have died in our work zones.

Work zone safety reform is about protecting workers AND motorists.

Senate Bill 139 is the legislation which was filed by Senators Larry Grooms (R-Berkeley County), Chair of Senate Transportation Committee and Larry Martin (R-Pickens County), Chair of Senate Judiciary Committee. The legislation will add a dedicated penalty to cover law enforcement costs, allowing the state to hire additional law enforcement officers, along with an additional two-point penalty against one's license. Similar legislation was filed in the 2011-2012 legislative session, but died when that session ended back in the summer.

In addition to safety concerns, there are other considerations that are driving this legislation:

2013 is coming - watch those employee handbooks!

While the employee handbook was once an afterthought of companies, seldom reviewed and updated even less often, it's one of the biggest liabilities for employers with regard to lawsuits and actions by federal regulatory agencies.

The truth that catches some employers off-guard, especially smaller ones who don't have dedicated HR staff or who don't have well-supported human resources operations, is that the employee handbook is one of the most widely-circulated company documents. Thus employers should take it seriously and make sure whatever goes into it should be reviewed with a fine-tooth comb.

A recent blog story discussed how the NLRB was using the language of employee handbooks to expand its jurisdictional reach into non-union workplaces. 

A recent email update from the Society of Human Resource Management's website cautions employers to take a close look at their employee handbooks, warning that "Legal and regulatory changes—more than new laws—are driving the need for company policy adjustments, revised plan documents and updated employee handbooks for 2013 by U.S. employers."

Among those items the article warns employers to pay close attention to are social media policies, employment at-will statements, handbook receipts, termination policies and state-specific issues.

Warning of continued close regulatory watches by agencies under the current Presidential administration, the article suggests that handbooks should be checked at least every six months and employers may want to include a disclaimer which cautions that state and local laws may also apply to terms of employment.

Online, after-time and overtime hours create potential problems

A while back, I'd written about the need for employers to be even more aware for the potential for a Wage & Hour compliance visit and how to be pro-active on these issues.

The other day, this story - Don't Get Sued by Your Number One Employee - from the Fox Business website gave additional food for thought about potential exposure for violations related to unpaid overtime hours:

Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, said at the root of the overtime regulation debate is the Fair Labor Standards Act (FLSA). The law establishes minimum wage, overtime pay and recordkeeping and youth employment standards, but is also extremely outdated, having been written in 1938.

“The Department of Labor estimates 70% of businesses are out of compliance with the FLSA,” Harned said. “This just points out how confusing [the law] is.”

And oftentimes, small business owners don’t even realize they are essentially breaking the law. For example, just because an employee is "non-exempt" from working overtime, doesn't mean they are entitled to continue working past their 40 hours per week, if the employer imposes such a regulation.

With technology allowing the lines to blur between work and off-duty time, employers need to be aware of when their employees are really working and to ensure they are properly classified so they don't get hit with a lawsuit for back pay or get tripped up in a Wage and Hour audit. It's an issue that I've had to deal with more than once and it's one where lawyers can easily get involved, costing employers large sums of money, win or lose.

Of course, always, always document everything - and expect employees to do the same from their end.

You can visit the U.S. Department of Labor and their Wage and Hour Division online for more guidance.

Senator Tim Scott: Major NLRB critic moves to the Senate

If there's anything one can be sure of about the appointment of South Carolina Congressman Tim Scott to replace Jim DeMint, who is resigning from the Senate to lead the Heritage Foundation, is that he's not going to be any friendlier to the National Labor Relations Board (NLRB) or organized labor than DeMint was.

If anything, Scott's record in the House suggests he'll be even more vocal on these issues than DeMint. WScott sponsored three bills in the last session of the House related to the NLRB and union activity in workplaces:

• H.R. 1976 and 2587, both sponsored by Scott, would bar the NLRB from directing companies to close or move plants or jobs.
• H.R. 2810 - The “Employee Rights Act”, would require the use of secret balloting to unionize a workplace and require a renewal vote every three years. It would also set guidelines on how these elections are to be conducted.

While in the House, Scott received very low scores on scorecards issued by three labor unions:

• AFL-CIO: Voted with them on just one out of 20 votes in 2012 and received a zero score in 2011.
• AFSCME: Zero score
• SEIU: Voted against their position on 8 out of 9 bills, no score assigned

With the direct impact of the NLRB being felt in South Carolina, where it moved to try to block Boeing's expansion in Charleston, as well as threatened to block the state from enacting legislation to codify the 2010 referendum allowing workers to decide workplace issues via secret ballot, it's not likely that Scott will back off his stance when he crosses over to the Senate next month.

Another reason for tougher Work Zone enforcement in South Carolina

Yesterday was another sad lesson in the need to crack down on work zone violators in South Carolina, when a motorist was charged with DUI with an incident which an SCDOT worker was hit and killed on Interstate 20:

The driver of the car that killed a state Department of Transportation worker on Interstate 20 in Lexington County Monday afternoon has been charged with driving under the influence and leaving the scene of an accident, according to the state Highway Patrol.

Thomas Lee Stafford, 39, is accused of driving drunk when his 2003 Nissan SUV hit Nicholas Johnson and fatally wounded Nicholas Johnson, who was walking along the road’s emergency lane near mile marker 62, according to Highway Patrol spokesman Brent Kelly.

Make no mistake about it, the dangers of work zones are real. If you doubt it, I invite you to spend some time in work zones, which is part of what I've done for a living for over a decade as an HR and Safety Manager.

While you might think it's just workers who are in harm's way, think again:

MA gas line eruption: Bad marks on ground to blame

A recent gas line blast in Massachusetts which damaged 42 buildings in Springfield, Massachusetts was determined to be the result of an employee following bad markings on the ground. 

This problem highlights a major concern which helped drive the efforts of myself and others to rewrite South Carolina's underground utility safety laws - the reality that contractors have to rely upon information from others and that safe digging is a partnership between contractors, utilities and locator firms. 

The picture on the right was presented by a state Senator in a Senate Judiciary Committee hearing two years ago. It showed a scene in Myrtle Beach where gas lines were found six feet from the marks, helping demonstrate the lack of effective standards and enforcement which convinced legislators the time had come to change the laws.

While reforming laws to keep up with changing needs, technologies and standards is important (the 2011 law replaced one written in 1978), one should keep in mind that laws create a framework and set baselines for accountability, but they don't always provide answers in the field.

Most locators I deal with are good at what they do, so this isn't a blanket indictment of their profession. But it does point out the need to proceed with caution and get all the information available before working, as well as be sure your locator knows what they're doing. Also, if you are working on a project where SUE (subsurface utility engineering) reports give you additional information about what's below.

Always know what's below, so you don't end up a headline - or worse:

House GOP makes first move on immigration reform

Hit by accusations that the GOP has been unfriendly to immigrant populations, House Republicans in Congress are making the first post-election move on opening up the immigration process.

House leadership is planning to bring the STEM Jobs Act, sponsored by House Judiciary Chair Lamar Smith, a Texas Republican, up for a second vote as early as next week. The legislation was voted on earlier in the fall, carrying 257 votes in the House, including 30 Democrats, but failed as rules required a two-thirds vote on the legislation. The new vote will simply require a majority to secure passage.

Business groups, including the U.S. Chamber of Commerce and Consumer Electronics Association, are backing the legislation, which is said to be aimed at boosting American tech companies, who continue to contend with a lack of skilled workers, even in the slow economy. This legislation could help American high-tech companies address staffing shortages while reducing the number of educated candidates available to foreign companies.

Labor unions shut down Hostess, no more Twinkies

If you're looking for Twinkies or Ding-Dongs on your grocery shelf in the near future, you can forget it - and you can thank labor unions for making it happen.

Struggling to get out of bankruptcy, Hostess - the maker of snack foods like Twinkies, Ding-Dongs and Wonder Bread - announced the decision to close the company after negotiations over wage and benefits packages broke down and labor unions went on strike.

A news release posted on the company's strike information website explained the issues that factored into the decision to close the company, which had been in business for nearly a century:

How do you "sell" safety?

In addition to being an HR and Safety person, I've also spent several years as an adjunct professor, teaching public speaking and other communication courses. One of the most important things I teach my public speaking classes is that you're always selling something - your ideas, your products, your clients and yourself.

Then I get to job sites and see people who are supposed to provide safety leadership - foremen, project managers, safety leads, etc. - who couldn't see water to a dying man in a desert. These are the people who yell directives, demand to know why someone isn't following the rules and read weekly toolbox training talking points from the sheets without even looking up to see if anyone's awake or listening.

This is one of those cases where it's not just good enough to know your own trade or know the rules. Leaders have to lead, which means they have to share their ideas and bring their teams along with them. But in construction, too many in leadership roles don't have any clue how to truly lead, making the role of any safety person more challenging.

Speaking and communicating are key skills for leaders in an organization and in a field like construction, those skills are often sorely lacking.

OSHA to expand reach into small workplaces?

While OSHA inspections have given small employers a pass on enforcement visits, that may be about to change. According to a story on the Bloomberg BNA website, the findings of a recent study of OSHA by the Office of the Inspector General of the U.S. Department of Labor (OSHA's Site Specific Targeting Program Has Limitations on Targeting and Inspecting High-Risk Worksites), included recommendations that the agency expand its inspection focus to include smaller workplaces.

The USDOL OIG office raised questions about the focus and effectiveness of OSHA's Site-Specific Targeting (SST) program, a program which was established in 1999 to target general industry worksites reporting the highest injury and illness rates. The program targeted worksites based on injury and illness rates calculated from employer responses to the annual survey known as the OSHA Data Initiative (ODI) survey.

One OIG recommendations called for OSHA to expand the scope of it SST program to include worksites with eleven to nineteen workers, as opposed to the current minimum number of twenty.

The OIG report criticism of the effectiveness of the SST program argued that the focus on larger worksites meant the agency was skipping over a large number of high-risk worksites:

Three good articles on presenting more effectively

Communication is a large part of my day job - and what I teach in my part-time adjunct professor teaching slots. While the aspects of my job which relate to media and community relations obviously involve communicating effectively with audiences, a lot of work related to human resources and safety also requires effective communication skills.

Good ideas, useful products and smart options get lost all the time because someone may be knowledgeable about something but can't get their points across effectively.

I got an email today from Speechworks, one of a number of email lists that I'm on, which features three good articles discussing how to communicate and present more effectively in professional settings that fit well with what I've learned from professional experience and what I teach in the classroom. I hope you find them useful.

Surviving DOL Wage and Hour audits

Since we're talking about compliance audits which can result in fines and costly and time-consuming administrative policy changes, let's talk about another agency which can come a'knocking: U.S. Department of Labor (USDOL).

The agency has been stepping up inspections for years, looking for companies which under-pay their workers, going back to the agency's Strategic Plan for Fiscal Years 2006-2011.

I've been through these before and my company passed with flying colors. Like most regulatory and compliance visits you'll encounter, they would be the most fun you've had on the job, but if handled properly - and prepared for beforehand - they're survivable.

But learning what they are, how to handle them, understand the process, and handle paperwork defensively beforehand are the keys to getting on top.

What triggers an OSHA inspection - and how to reduce them in your workplace

While everyone wants to have the kind of safety program which protects employees, protects the company's bottom line and keeps OSHA inspectors happy, one wants to keep OSHA inspections at their workplace to a minimum.

If you're a safety compliance officer, or if your job involves running operations on a project site or in a plant, or you deal with these issues at an administrative level, you should know what can trigger an OSHA inspection. Do more to avoid these things and you'll save yourself a lot of trouble, save your employer some money and in the process of eliminating what gets the attention of OSHA, you'll likely reduce your workplace exposure to hazards.

There are two kinds of inspections: unprogrammed, which are inspections which come up in response to situations that may arise, and programmed, which are planned and scheduled inspections (as determined by your state's OSH staff) and most employers (read on to find out why I say "most") can expect from time-to-time.

To help better clarify what can initiative an unprogrammed inspection, Page 9-3 of the OSHA'S Field Operations Manual warns that an "inspection is normally warranted if at least one of the conditions below is met", defining the conditions as including:

OSHA unveils 2012 Top Ten most-cited violations

According to Roy Maurer, writing online at the Society for Human Resources Management, OSHA announced the preliminary top 10 most frequently cited workplace safety violations for fiscal year 2012. The announcement was made at the 2012 National Safety Council Congress and Expo in Orlando, Florida on October 23.

This year's top ten violations were little changed from last year's top ten.

The top 10 most frequently cited workplace safety violations are as follows:

Tread carefully when using E-Verify in union workplaces

When using E-Verify in union workplaces, one should be careful to ensure union involvement in making the decision and implementing the use of this screening system for employees. A recent settlement between the NLRB and Pacific Steel Casting Company followed a decision by the company to unilaterally implement E-Verify screening for its new hires without seeking the involvement of the labor union which was in the plant.

Pacific Steel made three mistakes, which opened them up to the NLRB action: unilateral implementation of E-Verify, misunderstanding the E-Verify Federal Contractor rule, and misunderstanding when employees can be terminated for E-Verify notices.

Low turnout greets union meeting for Boeing workers in Charleston

Some might say that having 75 to 100 people turn out at a meeting to introduce Boeing employees to the International Association of Machinists labor union is a sign of progress.

That is unless you consider that the number of those who attended the meeting was a mere 1.3 to 1.6 percent of the company's Lowcountry workforce of 6,100 - far short of the number needed to organize the facility and not much more than the number who voted in favor of blocking the decertification of the facility when just several hundred worked there three years ago (a vote the IAM lost in a 68-199 vote).

But for all we know, they may have just attended for free food and drinks.

In any event, in spite of the very low turnout for the meeting, which followed a mailing to Boeing employees, the union plans to hold more meetings in the future to attempt to get back into the facility. Given the nastiness that erupted last year over Boeing's decision to open the plant in Charleston and the presence of the union in Boeing plants elsewhere, it seems likely they'll be back.

Speak Without Fear: A great online resource for developing professional speakers

I've known Deb Sofield for years. A professional speaking coach, she's worn a lot of hats in the Upstate South Carolina, including as a business and community leader. She chairs the Water and Sewer board that serves much of Greenville County and has been a leader in the Southeastern Institute for Women in Politics.

She's also got a free monthly newsletter that focuses upon developing professional speaking skills: Speak Without Fear. As someone who has taught speech at the college level, I'll say it's a great resource that you should check out.

"Binders" and punishing equality in the workplace

In this week's Presidential debate, when Mitt Romney discussed his efforts to ensure gender diversity in hiring cabinet positions as Governor of Massachusetts, one might've thought feminists would have praised him for openly embracing the importance of ensuring gender equality in the workplace - but once again, they proved that no good deed goes unpunished.

When Romney was confronted with a pool of mostly-male candidates to help him run Massachusetts state government, he made an effort to cast a wider net by specifically seeking out female candidates - hence the "binders of women" remark, which was likely intended to mean "binders of resumes from women". The result of this effort was that ten of the twenty top positions in his administration where filled by women, including Beth Myers, his Chief of Staff, and Jane Edmonds, a self-admitted liberal Democrat who was appointed Secretary of Workforce but who spoke glowingly about him at this year's GOP convention (please see her convention speech below).

While one would think that Romney would be praised for creating more opportunities for women, the news media and Internet was full of attacks from those on the political Left who ignored the substance of his comments and used the phrase "binders of women" out of context to fuel their latest political attacks against him.

Again, here's where I step out of the political context and put on my human resources hat to discuss this issue in a more informed context.

Useful E-verify information

Immigration compliance and employment discrimination related to immigration compliance can put employers between a rock and a hard place. As more states require E-verify and the feds are ramping up enforcement against employers who misuse E-verify, it's important to get the facts.

Here are some basics for those who use E-verify:

• Employers must still complete I-9 forms.
• All new hires must be entered within three days of starting work.
• All new hires must be entered into the E-verify system for confirmation of eligibility to work, not just some of them.
• Employers cannot use E-verify to screen existing employees UNLESS a company been awarded a federal contract on or after September 8, 2009, that contains the Federal Acquisition Regulation (FAR) E-Verify clause (see more online).
• E-verify notifications of work eligibility are NOT determinations of a new hire's immigration status. That's not a matter for employers to decide, so don't play cop or make assumptions.
• When you receive a TNC (Tentative Non-Confirmation) notice from the system, be sure to print the notice, provide a copy to the employee and follow the directions. There are employer-specific instructions, as well as instructions for the new hire to follow.
• Log in to E-verify on a daily basis to check for updates on new hires until cases are resolved.

But there's a lot of other information that you need to know, so don't take this article as a definitive answer about the system, rather use it as an invitation to learn more about it if you're not using it - or to brush up on what you know if you are a current E-verify user.

The U.S. Customs and Immigration Services website has a helpful Question and Answer webpage as well as online webinars for those who want to know more about the system. The Justice Department has a useful online Dos and Don'ts resource as well.

Free safety Food for Thought: "Lessons Learned"

The folks at Safe-T-Net, a safety engineering consulting firm out of Charlotte, NC, have developed a free monthly resource in the form of a one-page look at safety incidents. You can subscribe to "Lessons Learned" and get on their monthly email list.

While they don't offer an in-depth look, they cover a wide range of industries and types of incidents. Some of these incidents and assessments can be useful in reminding us safety professionals to think about these things.

It won't change the world, but it's free and it's written by people who care.

Feds cracking down on E-verify misuse

As E-verify usage becomes more common, especially with an increasing number of states passing immigration compliance laws which mandate the use of E-verify for new hires, employers need to be aware of what it is - and what it is not - so they can use it without getting into trouble.

It appears as if the federal Justice Department is taking this issue seriously, first by warning of plans to  ramp up investigations and enforcement actions for E-verify related acts of employment discrimination and then by taking action against employers who misuse of E-verify has an adverse impact upon employees. These are certainly warning signs those who use E-verify - or plan to - should take seriously.

IAM & Boeing: When "No" doesn't really mean no

Having been booted from the Charleston Boeing facility, and then losing a major NLRB battle to keep the plant from opening, the International Association of Machinists and Aerospace Workers labor union is back in Charleston, trying to get into the facility that didn't want them.

The Charleston Regional Business Journal is reporting that the union did a mass mailing to Boeing workers to invite them to a Question-and-Answer session being held in the Lowcountry next week.

Obviously they don't think that "no" really means "no".

Don't let these guys take your daughter on a date.

Legislative success in the S.C. State Senate

While we've seen a lot of criticisms leveled at the State Senate, calling the institution a dead-end for legislation passed by the House. While some very useful bills have stalled in that chamber, not every good idea or vital piece of legislation dies there. As one of the lead negotiators for the construction industry and a primary instigator of efforts to reform the state's underground utility safety laws, I know firsthand what the Senate can accomplish.

Working with the Senate (and later House members), laws that were enacted in 1978 and were considered some of the most outdated in our nation's history one of the worst in the nation in regard to safety, were finally updated. These reforms helped to head off potential hazards that were putting both construction workers and the general public in harm’s way.

Employee handbook rulings expand NLRB's reach into non-union workplaces

Employers who think that having a union-free workplace will protect them from National Labor Relations Board (NLRB) actions should think again. The federal labor agency has been broadening its reach into examining employer practices in non-union workplaces with no union activity taking place.

One area which is drawing increased scrutiny from the NLRB is the content of employee handbooks, as indicated by recent rulings issued by the board (Banner Estrella Medical Center, 358 NLRB No. 93, Hyundai America Shipping Agency Inc. 357 NLRB No. 80 and Karl Knauz Motors, 358 NLRB No. 164).

Unless the November elections result in a shake-up of the Board, employers and HR staff responsible for writing and maintaining the content of employee handbooks may want to scrutinize these documents for potential troublespots.

Watch for I-9 revisions next year - maybe

A recent story on the Society for Human Resource Management website reports that a new version of the I-9 form may be released next year - but that nobody could agree on exactly when that might be.

There are two versions of the I-9 form which employers should be using: the current version (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009). 

Keep in mind that even if your company uses E-Verify, either voluntarily or in you're in a state which mandates it's use, you are still required to complete an I-9 form for every new hire and retain the information as you would have before your company began using E-Verify.

You can get info on the current I-9 form online - and presumably keep a watch for updates there as well - at the U.S. CIS website.

Growing opposition to proposed federal hiring quotas

Back in December of last year, the Obama Administration's Department of Labor's Office of Federal Contract Compliance Programs posted a notice that the agency was planning to impose hiring quotas for individuals with disabilities on federally-funded projects. This proposal has drawn fire from a wide range of business and professional organizations who have expressed concerns about the adverse impact of this policy upon the business sector.

The proposed OFCCP policy would mandate a seven percent hiring quota for disabled and an additional two percent hiring quota for those with undefined “severe disabilities.” Patricia Shiu, director of the Office of Federal Contract Compliance Programs, claimed this policy will help reduce a thirteen percent unemployment rate for those with disabilities. Shiu defended the proposed mandates, claiming that "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals on federally-funded projects.

Recently, the members of the HR Policy Association, a national association of chief Human Resources officers expressed their objections to this proposal:

Questions about effectiveness of state OSH programs may lead to changes

Federal OSHA officials efforts to come up with effective measures for state-run Occupational Safety &  Health (OSH) programs keep coming up short, according to several reports which have examined how state-run programs are assessed. These measures are needed to ensure that state-run programs meet, if not exceed, standards and performance levels of the federally-run OSHA program which is applied in states without self-run programs.

Concerns about OSH programs in a number of states now include a report from the Office of the Inspector General (OIG) of the U.S. Department of Labor which has criticized the federal agency's ability to develop effective state OSH program measures. More bad news came in an August report from the Federal Annual Monitoring Evaluation (FAME), which criticized a number of states for the poor quality of whistle-blower programs.

These criticisms present major concerns for the quality and effectiveness of workplace safety and enforcement as the federal agency delegates the enforcement of workplace safety in many states, thus relying upon those states to develop effective safety programs that balance promoting safety with proper and effective enforcement.

E-verify mandate underway in North Carolina

Following the lead of South Carolina, which was one of the first states to pass workforce immigration compliance legislation following the Chamber of Commerce of the United States v. Whiting ruling, North Carolina is now mandating the use of E-Verify for screening all new applicants.

North Carolina will phase in compliance, based upon the size of a company's workforce, as follows:

• Effective Oct. 1, 2012—employers with 500 or more employees will be required to use E-Verify to check work authorization for all new hires.
• Effective Jan. 1, 2013—employers with 100 or more employees will be required to use E-Verify to check work authorization for all new hires.
• Effective July 1, 2013—employers with 25 or more employees will be required to use E-Verify to check work authorization for all new hires.

For companies with multi-state workforces, the agency will consider just in-state employees towards the determination of the first date of enforcement.

At this time, the North Carolina legislation exempts employers with less than 25 employees as well as seasonal workers (but keep reading because federal requirements may still apply).

Social Media increasingly being used as evidence

As if we haven't seen enough written about the need to exercise caution about what is being said in social media, another word of warning comes from Allen Smith, who recently interviewed David Osterman, a New Jersey attorney specializing in labor and human resources issues for a recent story in the Society for Human Resource Management website. 

While this news that social media is impacting what takes place in courtrooms probably isn't surprising to many, the details of the story bear attention in the article, Smith warns readers that:

"Social media has filtered into courtrooms, transforming jury selection; questioning of witnesses; interactions between jurors, lawyers and judges; and evidence. And employment litigation has been affected ..."

In the story, Osterman details how social media is being used to do advance research for jurors and witnesses, as well as how social media commentary is qualified as evidence in the courtroom. For those who want to protect their company from legal exposure or prepare a strong defense for cases that may go to trial, this story makes for good reading.

More signs of ramped-up OSHA enforcement and penalties

A while back, I'd written about news that OSHA was ramping up enforcement and boosting penalties, in advance of proposed legislative efforts to raise penalty limits for violations.

It seems that some of these efforts have drawn some controversy, most notably the agency's Severe Violator Enforcement Program (SVEP), which kicked off two years ago, replacing the agency's Enhanced Enforcement Program with the aim of focusing enforcement efforts upon:

(H)igh-emphasis hazards, which are defined as high gravity serious violations of specific fall standards -- 23 such standards are listed in general industry, construction, shipyards, marine terminal, and longshoring -- or standards covered in National Emphasis Programs focused on amputations, combustible dusts, crystalline silica, lead, excavation/trenching, shipbreaking, and process safety management.

Immigration enforcement focusing on employers

Federal immigration officials in Kansas are applying severe measures to punish those who employ undocumented workers:

After an Overland Park couple were indicted, accused of knowingly hiring illegal immigrants and paying them less than other employees, federal authorities said Tuesday that they would seek to seize the couple’s two hotels.

This followed a raid earlier this year which found that roughly half the employees at the two hotels were undocumented workers. The feds allege the couple paid the workers with cash and paid them less than the minimum wage, including to an undercover agent who told the couple he was an illegal alien.

According to Kansas U.S. Attorney Barry Grissom, the agency would continue to go after employers for illegal hires, warning "We are going to enforce immigration laws, and we are going to enforce them equally ... we’re not going to enforce them merely on the backs of (undocumented workers).

This is part of a new approach to dealing with the illegal immigration issue by going after employers. Two years ago, the New York Times reported on the agency's new focus:

The wrong way to handle an immigration audit

There are right ways to handle an immigration compliance audit and there are wrong ways.

In Los Angeles, Yoel A. Wazana, 38, owner and production manager of Wazana Brothers International, Inc., doing business as Micro Solutions Enterprises (MSE), decided to try one of the wrong ways and will now have to plead guilty plead to one felony count of false representation of a Social Security number. This comes after a 2008 raid resulted in the arrest of eight company workers on criminal charges and another 130 for  administrative immigration violations. 

Considering the extent to which he attempted to cover up potential problems, he's lucky to get off so lightly:

According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company's payroll and hiring records, Wazana directed that about 80 of MSE's most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE's assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

As this blog is not written by an immigration attorney, I won't attempt to tell you the right ways to handle an immigration audit, but based upon my experience in the field of HR (and having passed immigration compliance audits), compliance with the law in hiring practices seems like a good way to keep out of trouble.  

Questions about Unemployment Insurance reforms in South Carolina

Depending upon who you ask, efforts to crack down on eligibility for unemployment insurance may or may not be paying off. This year, the agency that issues these payments says they're on track to pay out significantly less for unemployment claims, with an expected $300 million paid out, a full third less than the $450 million paid out in 2011.

Why is this important? The state's unemployment insurance fund is supported by payroll taxes from employers. Fewer claims allow the agency to cut back taxes and pay back money borrowed from the federal government to help make payments in past years.

But there are differing opinions on the issue about the potential for rate reductions for employers between staff who oversee the program and State Senator Kevin Bryant, an Anderson County Republican who chairs the State Senate's Labor, Commerce and Industry Committee's subcommittee that oversees unemployment insurance issues.

Underground utilities - not as deep as you'd think

The recent issue of Damage Prevention Professional Magazine shows photos which point out the need to watch out for buried utility lines hear the surface. While damages which occur in such instances are often blamed on construction contractors who are digging, there's much to suggest that when such damages take place, utility companies and the firms they contract to install underground lines may bear some of the blame.

While all but three states require marks to be within 18 to 24 inches of the actual underground location of buried lines and pipes, not every state's laws speak to the matter of depth of lines. However, a number of states do provide guidance on the matter, as does a federal study, suggesting that it's recognized that lines should be buried deep enough to ensure that light digging or scraping doesn't hit them.

Stalking and violence - legal for labor unions

It's well-known that labor disputes can result in violence against persons and property in workplaces in the United States. But what isn't as well known is that in some cases, the courts and the laws are giving labor unions license to harm and harass companies and workers, according to a report issued by the U.S. Chamber of Commerce's Workforce Freedom Initiative.

Entitled "Sabotage, Stalking and Stealth Exemptions: Special State Laws for Labor Unions", the report looks at how both courts and some states have turned a blind eye to threatening and dangerous behaviors, going against the growing concerns over combating violence and threatening behaviors in the American workplace.

The report begins by tracing the history of state exemptions to a 1973 ruling by the U.S. Supreme Court (United States v. Enmons, 410 U.S. 396) which held that ruled that violence in pursuit of union demands cannot be prosecuted under federal law, arguing that violent activities, when used during a strike by workers of the Gulf States Utilities Company, did not meet the standard of "wrongful" conduct needed to convict in a federal extortion case. From there, a number of states are called out for giving unions a pass on threatening and violent conduct in workplaces.

New federal EEO expectations for criminal background checks

Criminal background checks can be an effective way to avoid problems in the workplace, but if not done properly, background check processes can create more headaches than they avoid, thus employers should use them with caution. 

A recent 4-to-1 vote by the U.S. Equal Employment Opportunity Commission (EEOC) to approve new guidance for employers conducting criminal background checks is certainly going to raise the bar even higher for employers.While the guidance from the EEOC is not a regulation, it is a warning of growing concern by the Commission and will help inform its field staff when conducting investigations and considering enforcement actions. 

One of the key motivators for this decision was driven by concerns about employers who inappropriately used criminal background checks. The most egregious example was employers who screened out applicants based upon arrest histories, not taking the time to determine if the arrests led to convictions. In too many cases, arrests resulted in dropped charges, meaning people who were found not guilty in the eyes of the law were found guilty in the eyes of an irresponsible employer.

Unions and NLRB still pushing over Poster issue

While court rulings earlier this year put the National Labor Relations Board's (NLRB) workplace poster mandate on ice, an appeal of the National Association of Manufacturers ruling is expected to be heard in the D.C. District Court of Appeals in September. Since these rulings were issued, a number of actions taken in support of the policy both by the agency and those in support of the rule, presenting new challenges for employers and those seeking to curtail the ability of the agency to act as an advocate for labor unions.

The poster rule suffered two setbacks from rulings which barred the agency from mandating employers post a notice that was considered by many to be free advertising for labor unions. In National Association of Manufacturers v. NLRB and Chamber of Commerce v. NLRB, federal courts in Washington D.C. and South Carolina both ruled the agency could not require employers to post such notices. 

Earlier this month, a Friend-of-the-Court brief filed by the AFL-CIO, Change to Win, and Professor Charles Morris, a retired professor from the Dedman School of Law at Southern Methodist University in Dallas sought to support the NLRB's push for the employer mandate, arguing the poster and other notification processes were within the scope of the agency's authority and were essential to it's ability to help workers who sought to organize unions in their workplaces. In the brief, they warn that "as union density has declined, the need for workers to have an independent source of information about their rights has never been greater".

Pennsylvania latest state to issue E-Verify mandate

Pennsylvania joins a growing number of states which are mandating the use of the federal E-Verify service for screening new hires for eligibility to work in the United States.

Signed into law earlier this week, the Pennsylvania law applies to companies which do business with state government, but doesn't apply to other businesses. The new law would require them to subscribe to the service and begin running new hires through the system no later than January 1 of next year, giving them several months to learn the system.

It's worth noting that E-Verify rules require that all new hires be run. Selectively running new hires or even checking out applicants who have not been hired is not allowed. All or nothing.

The new law comes with penalties, including fines and bans on doing business with the state:

Supreme Court reins in union political fundraising - again

A ruling by the Supreme Court last week continues years of rulings by the Court which have reined in the ability of labor unions to collect funds for political activities from workers. Last week's ruling in the case of Knox v. Service Employees International Union, Local 1000 continues that trend, calling into question a union practice of collecting the money from workers for political activities. 

In the Knox ruling, the Court held that the method used by the service employees' union to collect special fees for campaigning against two referendum questions in California in 2005 violated those workers First Amendment free speech rights. The court issued two rulings on separate issues in the lawsuit: 

• In a 7-2 ruling, the court concluded that the union did not give proper notice to non-union members before making the deductions.
  
  
• In a 5-4 ruling, the court ruled that the method used by the union to allow non-union members in the state's "agency shop" workplaces to "opt out" of such special fees was insufficient to protect their First Amendment rights, ruling that non-members should be sent a notice giving them the chance to "opt in" to the special fees.

The case was initiated by eight California civil servants in response to a 2005 "special assessment" imposed by SEIU officials to raise money to campaign against four ballot proposals, including one that would have revoked public employee unions' special privilege of using forced fees for politics unless an employee consents. The plaintiffs argued that employees who refrained from union membership who were forced to pay union dues as part of the state's agency shop workplaces were given no chance to opt out of paying the SEIU's political assessments.

OSHA employer penalties rising

Employer should be wary of increased efforts by federal and state OSHA officials to enforce and penalize employers. While some actions aimed at increasing penalties have been bottle-necked in Congress and in federal courts, but such roadblocks alone won't stop employers from facing increased headaches and costs from OSHA visits to workplaces. Increased OSHA inspections will allow the agency to spot and cite violations with increased frequency, the federal agency is also changing the rules which govern how penalties are applied to greatly reduce the latitude given to employers and set employers up to face quickly-increasing fines for workplace safety violations.

In writing for the Society of Human Resource Management labor attorney Allen Smith reported on a presentation by Nina Stillman, a labor attorney with Morgan Lewis in Chicago. As penalties are capped by existing federal laws, OSHA has increased penalties by ramping up the use of repeat violator citations. Stillman said OSHA “is doing repeats all over the place.” Such citations are very costly for employers, costing up to five times the penalty of the first-offense citation. 

Stillman also reported that OSHA has increased the penalties by:

Feds considering hiring quotas for disabled

In what has been a controversial move contested by major national business organizations, the U.S. Department of Labor is considering a proposed rule that would mandate a seven percent hiring quota for those with federally-funded contracts.

Keep in mind that many local and state programs receive federal funding, thus could fall under the scope of this proposed rule.

Claiming a thirteen percent unemployment rate for those with disabilities, Patricia Shiu, director of the Office of Federal Contract Compliance Programs, said "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals.

That means mandates upon employers are in the works.

More states mandating E-verify for employment screening

While this week's Supreme Court decision on Arizona's immigration enforcement legislation may have tied the hands of the state to enforce immigration laws, this ruling did not touch the state's E-verify mandate, which was affirmed by the Supreme Court in last year's ruling in the matter of Chamber of Commerce of the United States v. Whiting. This and other signs point to a growing willingness to mandate E-verify and allow states to implement laws restricting the ability of employers to employ those who don't establish their legal right to work in the United States.

Following Chamber ruling, nine other states joined Arizona in requiring businesses in those states to use E-verify to screen new hires - Florida, Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. While the dates for the implementation of the laws vary from state-to-state, all ten states require employers to be using this system by the end of this year. But a report from the National Conference of State Legislatures indicates the E-verify mandates are just the tip of the iceberg on issues related to employment and immigration. 


Nearly 500 pieces of legislation related to immigration and employment have been filed in forty-four states, as well as Washington DC and Puerto Rico, in 2011 and 2012. Last year, immigration bills related to employment and law enforcement issues were the overwhelming majority of legislation introduced regarding immigration and employment-related bills remained one of the larger areas of such legislation this year.

While the volume of legislation dropped this year, at least some of this drop-off may be due to the fact that many state legislatures hold shorter - or no - sessions in even-numbered years, thus allowing for less legislation to be filed.

As these efforts are ongoing and the laws will vary from state-to-state, employers and their HR staff would be wise to keep on top of these issues as well as the laws passed wherever they may be doing business. With many of these laws including punitive measures such as hefty penalties, business license  sanctions and even jail, those who choose not to stay on top of these issues do so at their own risk.

US Dep't of Labor Wage/Hour crackdown looming?

My company recently had a site visit from an investigator from the Wage and Hour enforcement by the U.S. Department of Labor. The investigator was cordial, professional and efficient in his visit. But changes in the agency’s approach to handling investigation and penalties should serve as a warning that those friendly visits may become quite costly for an unprepared employer.

Writing in the June 2012 edition of HR magazine, attorney Allen Smith reports that Wage and Hour enforcement by the US DOL is becoming more aggressive, meaning employers will need to exercise additional caution on these issues.

Reporting on a May presentation at the Jackson Lewis Corporate Counsel Conference in Washington, D.C., Smith reported that investigators are now assessing civil penalties on first visits. This is a change from years past, when a first visit would result in a warning and useful guidance on how to improve compliance so as to avoid penalties.

This is just one of a number of reports of ramped-up enforcement.